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Can my ex take the children out of school during term time?

When legal advice on your case can help and when it can hinder.

No one would argue that seeking legal advice on your divorce or separation is something you should do. Good legal opinion can help you know what the law is surrounding your case, help you go into mediation or discussions with your spouse with a better understanding of what you are entitled to and is useful to sense check any agreement you reach to ensure you have considered everything you need to consider.

The difficulty comes when you have each paid approximately £1,200 to your solicitors to go through your Form E’s, or financial disclosure and you have each received completely different advice on what you should get as part of the financial arrangements.

Any family mediator is obligated to encourage both clients to seek legal advice and it can be very helpful in progressing matters, especially where one party is being particularly belligerent in their views or unreasonable in their requests. However, it can also cause more issues for the couples.

Let me take the above example, where each party has invested £1,200 to receive legal advice. One party has been told they were entitled to 70% of the total assets, spousal maintenance at £1,800 per month and 50% of the pension. The other party has been told that there is no reason why they should not split the assets on a 50/50 basis; as they are nearing retirement age sooner than their spouse, they should receive more of the pension share, around 60/40 split and if any spousal maintenance is due, it should be for a nominal order of £1 per year.

It is very difficult for either party to then compromise on such polar positions. In this case, the difference between 70% and 50% of the assets was a little over £150,000. Not an insignificant amount to compromise on.

Reassured that they were both in the right, the parties went to court, at a cost of just under £70,000 between them. It took 18 months, an awful lot of stress and time out of work and their ongoing relationship, which was difficult but manageable at the start of the process, had turned into a deeply imbedded hatred of each other, that impacted on the wider family and friends.

Eventually the court made a judgement, which was for a 55/45 division of the assets, the same division of the pension fund and ongoing spousal maintenance of £500pcm. Neither party were particularly happy with the outcome.

The above case shows how new ways of resolving disputes, such as an independent barrister review, can really help clients understand what the court is likely to order and more importantly what they will and will not take into consideration. In the above case, the wife had had an affair and the husband was adamant that this should be taken into account with regards to the settlement.

In another recent case, we had mediated over 10 months and finally, set against the most difficult of backgrounds, had helped the clients reach an agreement. Part of the agreement was a pension sharing order from the husband to the wife of 30%. A memo of understanding was drafted and both parties wanted to take the agreement to their solicitors for checking, prior to our drafting a consent order. Nothing wrong with that at all and as explained, it is encouraged by the mediators.

However, in this case one of the solicitors said that as one of the parties was keeping 70% of the pension fund, then they should contribute 70% of the cost of the pension sharing order.

The other solicitor said that any costs of the pension sharing order should be shared equally between the parties. This relatively minor point (worth about £2,000) caused the whole agreement to collapse and they were on the verge of going to court.

In this case, we were not prepared to allow the clients to go to court over a difference of £2,000 when the process would have cost them tens of thousands. Instead, they agreed that our solicitors should be asked the question independently by the mediator of how costs should be shared on a pension sharing order. Our solicitors, said they always share costs 50/50 (unless the couple agree not to) and they had never heard of the share being apportioned as suggested above.

The clients accepted this and we were able to keep them out of court. More importantly they were able to put into place their agreement far quicker than going to court would have allowed, meaning they can start to rebuild both their lives sooner.

The above example shows the difficulty that getting legal advice can have and whilst we will always maintain it is useful, we also recommend that you seek a Resolution accredited solicitor and use the advice as guidance, rather than the absolute answer to your situation.

Divorce Friend has a barrister review package, where you can get an independent but expert opinion on your situation for you both, or you can take advantage of our legal advice package, which includes expert but realistic legal advice from a resolution accredited family lawyer on your case.

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