Choosing the way that you and your spouse navigate the financial negotiations is a key decision that you will have to make as part of the divorce process. The menu of options available to divorcing couples has never been so vast and it can make an already difficult situation feel overwhelming. There is not one option that is better than the rest; no right or wrong option. So how do you decide?
Your decision will be influenced by many factors, including:
- the complexities of your financial circumstances;
- how amicable your relationship with your ex-partner is;
- whether there has been any domestic abuse in the relationship;
- how quickly you need/want a resolution;
- the cost implications;
- how important it is for you to have control over the decisions made;
- the importance of confidentiality; and
- the willingness of your ex-partner to engage;
So, what are the options?
- Family Mediation – a qualified family mediator takes a neutral role in helping parties to explore options and reach an agreement in a series of confidential meetings, using their skills and experience to help overcome any disputes. These meetings can be held online or in person. Discussions can take place with parties in the same room or with the mediator shuttling between the parties in different rooms.
- Hybrid or Integrated Mediation – a form of mediation, but often with the support of other professionals within the mediation process. This is usually the parties' solicitors, but can also include financial advisors, accountants and other experts. The mediators can also have confidential meetings with each party to help them better understand the proposals that have been made.
- Collaborative Law – each party instructs their own specially trained collaborative lawyer and signs up to an agreement to conduct discussions constructively and not to make an application to court. Typically the discussions take place in a series of confidential meetings between the parties and their collaborative lawyers, who are present to provide advice and support.
- Early Neutral Evaluation – where a legal expert is instructed to give an indication how they believe a case should be settled to help inform and facilitate the parties in their discussions. This is often done within the mediation or collaborative law process to help when there is an impasse.
- Private FDR – in court proceedings there is often a Financial Dispute Resolution (FDR) hearing where a judge will help to facilitate the parties negotiations by giving an indication on how they would deal with any arguments being raised by either party, to encourage parties to reach an agreed settlement. A Private FDR is much the same, but there is greater flexibility in choosing who your "judge" is and where and when the "hearing" is to take place.
- Arbitration – the parties jointly appoint an arbitrator who will make a binding decision, after considering all the facts and legal arguments. This may be in relation to the full financial settlement or just one aspect of it, as the parties are able to limit the scope of the dispute that the arbitrator is to decide upon.
- Med:Arb – a combination of mediation and arbitration. The parties will attempt to use mediation to resolve their dispute but, where there are still issues outstanding, this can be seamlessly referred on to the arbitrator to make a binding decision on those outstanding issues.
- Solicitor negotiations – your solicitor will help you collate full details of your financial circumstances and exchange this with your ex-partner. They will then negotiate a settlement on your behalf, often through written correspondence, telephone calls or, where appropriate, round table meetings.
- Court – if parties are unable to reach agreement, then an application can be made to court. The court will manage the case to ensure both parties have disclosed full details of their financial circumstances. Whilst the court still encourages parties to reach an agreement, if they cannot, ultimately a judge will make a binding decision.
How we can help you negotiate a financial settlement
When you meet with one of our divorce solicitors, we will talk you through and help you understand the options that you have so that you can make the best decision.
No matter which of the above routes you take, it is essential that you have a solicitor to provide clear and accurate advice as you negotiate your settlement, so that you can make informed decisions. A solicitor will also ensure that once an agreement has been reached, it is incorporated into an appropriately drafted legally binding document.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.