Divorce – Questions to ask

Making the decision to file for divorce is never easy. It can be a daunting situation to have to approach a divorce lawyer to discuss formally ending your marriage. Here are some of the most frequently asked questions when divorce is being considered.

1. Will my divorce have to go through the courts?

If the divorce is uncontested and a martial settlement can be agreed, you may not need to go to court. Court proceedings are time consuming and expensive so should be a last resort. Court proceedings will be likely if:

  • Your spouse is not giving you all the financial information you need to make a decision.
  • There is no hope of negotiating a financial settlement after divorce which is fair.
  • There are complex financial issues that you need a divorce court to help you sort out, to get a financial settlement on divorce.
  • There is domestic violence – or the threat of it.

2. As a mother, will I automatically get custody of my children? / As a Father will my ex automatically get full custody of our children?

It depends! If you are unmarried, the mother has automatic rights in respect of the children, so she would have the sole right to look after her children in a manner and place she sees fit.

When the parents are married they both have a parental responsibility and if they cannot agree together on where the children will live, a court can be asked to decide. Depending on your individual circumstances, this can be a painful process. The courts will only make a residency order if all other options have been exhausted.

However, since 2002 an unmarried father can also acquire parental responsibility if he jointly registers the child’s birth with the mother. He can also get parental responsibility if both partners sign a Parental Responsibility Agreement. This can be done at any time during the relationship or separation and can also be ordered by a court during or after the separation process.

Whether or not the father has parental responsibility, he is still responsible for the financial support of his children. He can be contacted by the Child Support Agency for this money.

3. Do I have to get divorced in the same country we got married in?

This depends on the laws of the country you want to get divorced in. In the UK you can obtain a divorce providing that certain criteria regarding domicile or habitual residence are satisfied.

English courts have jurisdiction to hear a divorce petition if either of the following applies:

  • If it has jurisdiction under the European Union regulation known as Article 3 of Brussels II.
  • Both you and your spouse were last habitually resident in England and Wales and one of you still reside there.
  • Your spouse is habitually resident in England and Wales.
  • You are habitually resident in England and Wales and has resided here for a year.
  • You are habitually resident in England and Wales and has resided here for 6 months and are domiciled in England and Wales.

4. How long does a divorce take to go through?

Recent average timescales for divorce in the UK where both parties agree:

  • The national average time for a divorce in 2014 was 33 weeks.
  • The national average time for a divorce in 2015 was 30 weeks.
  • The national average time for a divorce in 2016 was 26 weeks.
  • 2017 is around 22-24 weeks.

5. Will I have to pay more in my divorce settlement if I caused the breakdown of the marriage through adultery or other means?

This is a common concern/misconception. Divorce settlements follow a legal framework, the award will not be affected by who’s to blame. You won’t be awarded less because of infidelity for example.

6. Do I actually need a divorce solicitor or can I do things myself?

If everything is extremely amicable between you and your (soon to be) ex-spouse, it may be possible for you to go through the divorce process without a lawyer, although this will depend on many factors.

7. Should I have any communication with my spouse during divorce proceedings?

Unless the relationship between the two of you has become volatile there is no reason for you to avoid communication. If you have to make contact through an attorney/solicitor or third party, you may end up spending a lot of time and money.

8. Should I write a will / rewrite my current will now or wait until after my divorce is finalised?

This is an important question to ask. Often people want to make a new Will when they separate because when they are still married, their spouse can have claims on their estate, even if they’re separated.

9. I don’t have the full picture regarding my spouse’s financial situation. Can they hide things from me?

There is always a possibility a spouse or ex-spouse will try hide some of their wealth. This is against the law and there have been high profile cases in the news where women have won a Supreme Court fight on the basis that their ex-husbands hadn’t declared their true worth at the time of divorce.

10. My spouse really doesn’t want to get divorced – what are my options?

If your partner is refusing to accept you want a divorce it’s likely you will need to seek professional help. Sometimes a partner will avoid signing the papers or even accepting receipt of them. A popular alternative is to engage the services of a process server, similar to a bailiff. The role of the process server is to hand deliver the divorce papers to your spouse without notice.

When the process server has identified and confirmed your spouse’s identity usually by photographic evidence or asking your spouse to confirm their name, the papers will be handed to them. The Process Server will then provide a statement of service which is submitted to the Court with an application for decree nisi to prove that your spouse has received the papers. Your divorce can then proceed without further input or consent from your spouse.

11. How will our assets be valued so a settlement can be reached?

For your peace of mind you’ll want to know you’re getting a fair settlement. If you’re not sure about how your assets will be valued for this purpose, make sure you ask the question to your solicitor/attorney at the start of the process. If you or your spouse have a defined benefit pension schemes you will need help from a financial adviser so that the true benefit can be identified.

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