Category: Children

Legal costs on divorce

Posted on by Russell Davies

Bob Hope was quoted as saying “America is a country where the Olympics and the divorce lawyers both have the same slogan – Go for the Gold”. Are family lawyers in Jersey really that expensive and, if they are, what can you (the unfortunate client) do about it?

The short answer is that divorce lawyers are not cheap, and nor should they be. They have, after all, studied and worked hard to achieve expertise in a difficult area of law. The more complicated your situation the more time and skill will go into helping you to achieve a fair outcome with the least possible pain. That said, you should not find yourself in a position where the lawyers end up with more of your money than you do. The fees we charge should be proportionate to your case and you should feel that they are fair.

Big bills are unpleasant, and unexpected or unmanageable bills are a problem. Legal fees should never come as a surprise. We are required to provide you with information about your costs and, where possible, a sensible estimate of the costs you are going to incur. This enables you to plan and to ensure that your costs are proportionate to the issues in your case. You may not want to spend a small fortune to win a moral victory. You will not want to spend so much on your lawyer that you cannot buy a home. Do not assume, by the way, that your spouse will foot the bill – in the majority of cases each party will have to meet their own costs.

There are things that can and should be done to reduce legal costs. Lawyers will often provide an initial consultation at a reduced fee. They may well be able to offer a fixed fee and/or a payment plan which will enable you to manage your legal costs. Some lawyers will defer fees until the sale or maturity of an asset. Whichever lawyer you instruct remember that you are the boss, and make the most of their time – all good family lawyers expect to provide emotional support as part of the job, but bear in mind that you are ultimately paying for that emotional support.

Every family situation is unique, and this area of legal work requires an impeccable level of service – because our clients are frequently going through the worst time of their lives. Your prospective lawyer may describe themselves as the “largest”, the “boutique”, the “leading” or even the “best”; lawyers rarely advertise themselves as the “pretty average” or the “most expensive”. The trick is to look around for the right individual or firm who will give you confidence and meet your needs – at a price that you can afford and are willing to pay. When you find that person, make sure they give you value.

Not all family lawyers are in it for the money; but you should make sure they spend your money wisely.

Advocate Claire Davies
May 2021

A good time for big decisions? Divorce after Covid-19

Posted on by Russell Davies

A lifetime ago, in February 2020, the world was different. We booked holidays, sent our children to school, went to work, and shopped for things we didn’t really need. These were small decisions that now seem significant. What about the big stuff?

Most of us have had time (sometimes too much time) to think about the things that are important to us. Some relationships have become stronger, some are coming to an end. Some have been over for a long time, and it has become important to draw a line under them and move on. Everyone is worried when their relationship ends. For couples who decide to split up now, economic uncertainty may make the future an even more frightening place. What can I say to help?

Perhaps consider counselling. The end of a relationship is always sad, it is a tragedy if that relationship could have been saved. We have all been through a difficult time. There are services who can help couples to communicate again.

Even if the end of the road has been reached, that does not mean that open warfare must descend. These days, more clients are telling me that achieving an amicable resolution to their case is a priority. Most separating couples tend not to focus on divorce itself to start with – they want to sort out arrangements for their children, and their finances. How do you sort out your finances when some say we might be on the brink of financial catastrophe? We should be cautious and realistic when making financial decisions that will shape our future lives, but even in difficult times it should be possible to agree sensible arrangements if we have the right figures and the right advice. If long term decisions are difficult, we can resolve short term finances to ensure that both parties, and their children, are ok.

What if you are divorced and your settlement now seems unfair? When the Court has made a final order dealing with capital assets, it is very difficult to try to overturn that order. It is sometimes possible to review future obligations that have been impacted by a change in the financial position. That may include spousal or child maintenance or, in some cases, the timing of a lump sum payment or transaction. If you are affected, try to agree something sensible. If you can’t, take good legal advice quickly – delay is not helpful.

Think positive. The crystal ball shop is still closed for business, but Jersey has a resilient and resourceful population. We need to find our confidence and move on.

Claire Davies

This article originally appeared in Gallery magazine June 2020

Where the grass is greener…

Posted on by Russell Davies

Family law is tricky. Following the breakdown of a relationship, partners are often angry and frustrated. Where those ex partners are also parents, they have to cope with the practical and emotional drain of co-parenting their children after a separation or divorce. Difficult emotions, combined with a lack of trust, can make it very hard to negotiate a way forward that everyone can live with. There are a variety of agencies out there to help – family mediation, for example, can be an invaluable resource to help parents find their own creative solutions to problems that crop up when parenting their children. Seeing a lawyer should help, but going to court is rightly seen as a last resort. However, the problems that confront separating parents are many and some nuts are harder to crack than others are. One issue is particularly hard to resolve amicably – even for the most child focused and reasonable parents. What happens when one parent wants to leave the Island with the children to live in a different country? Can they do it, can they be stopped and what principles will apply? This is a complex area of law, and whichever side of the argument you are on it is very important to take legal advice from a family law specialist – and to do so quickly.

In simple terms, a child should not generally be removed from Jersey without the clear permission of the other parent – or a court order which permits that to happen. Where parents try to remove children without appropriate permission, they may find themselves accused of child abduction and/or face a court order requiring them to return and, once in court, they may have to deal with a very unhappy judge. Parents who are considering leaving the Island should make sure that they are acting lawfully. Parents who are afraid that a child is about to be spirited away without their permission may have to ask the court for an injunction to stop it.

Where there is no immediate worry that a child is going to be taken away without permission, what happens next? It is hard to negotiate (or mediate) where the answer is either “stay” or “go”. Parents who face this problem should try to have an open dialogue so that they can understand each other’s points of view, worries and concerns. It may well be that after careful discussion they may be able to find a compromise that provides a way forward for everyone. At the very least, they will have a better understanding of the problem. Ultimately, if parents cannot agree, this may trigger the start of lengthy court proceedings to determine where a child should live and how the court can make sure that they maintain a meaningful relationship with the parent who is left behind.

What does the law say? Well, the outcome will depend on what the judge considers to be in the best interests of the child. That is a subjective question. The judge must work on the basis that the interests of the child are paramount. They have a “checklist” of issues set out in the law, to help them decide what is in the best interests of a child. The judge may also have the help of JFCAS, the court advisory service. The JFCAS officer will advise the court on the welfare of the child and will help the judge to understand the wishes of children who are old enough; particularly with older children, those wishes may be very important. The court will look carefully at how well researched the move is, and what it is about the move that makes it best for the child (as opposed to best for the parent). To top it all, the law is evolving. Judges are becoming more cynical about applications to move minor children to a different country, and it seems that it may be harder moving forwards to win these applications. Very recently, the Family Court in London declined permission for a Ukrainian mother to remove her young children from England to live in a different country with her partner (for legal beagles, the case is reported as GT v RJ [2019] 1 FLR 46). The court was critical of the mother who had, it felt, defied court orders and generally behaved in a manipulative way.

What will the future look like for these children? Perhaps only time will tell. All professionals working on cases involving children wish they had a crystal ball, but they do not. The courts do not have perfect solutions to family problems – judges do the very best they can. Where parents are able to work together, they are far better placed to make, and to implement, important decisions for the children that they love.

Advocate Claire Davies
This article first appeared in the Jersey Evening Post February 2019

Divorce Mythology

Posted on by Russell Davies

Until you come to get divorced, matrimonial law is a mystery. When your marriage does breakdown it can seem like a dangerous world of expensive lawyers and unfair rules. It is true to say that divorces can be expensive, and the outcome often feels unfair, but there are popular misconceptions and myths that can be busted:

MYTH – Children always go to live with mum.
Arrangements for children vary widely, the important thing is that they work for your family and that they are in the best interests of your children. Increasingly, children are spending a lot of time with both of their parents. When you separate or divorce, try to agree a parenting plan that enables both of you to be an important part of your children’s lives. If you are struggling, consider family mediation.

MYTH – You only pay child maintenance when you see your children
Contact with children, and the maintenance paid to help support them, are entirely separate legal issues. Even if you do not see your children, you should be helping financially. Having said that, the court will be keen to help you to establish contact, provided it is safe.

MYTH – People who have had affairs will be, ‘taken to the cleaners’ by their spouses.
Although adultery is still a ground for divorce in Jersey (even if you start a new relationship after the breakdown of your marriage!) the family court very rarely punishes people financially because of their life choices, or even because of their poor behaviour. For the court to be influenced in any way by allegations of poor conduct the behaviour has to be “gross and obvious” which is legal speak for really, really bad.

MYTH – You can be a ‘common law’ spouse.
Some people believe that if you live together for a few years you become a common law spouse and have an entitlement to their assets on separation. That is not the case. Parents of children can bring some financial claims against the other parent but, aside from that, cohabitees have relatively little legal protection if their relationships break down. It is wise to take advice and consider a cohabitation agreement if you want to try to avoid nasty surprises.

MYTH – Prenuptial agreements are binding
No. A court is likely to give considerable weight to a well drafted agreement, and may decide to enforce it but, as the law stands, only a Judge can draw a final line under an agreement between spouses.

MYTH – Assets are always split down the middle on divorce.
There is no room for discrimination in family cases, and the court accepts that a breadwinner and a homemaker make equal contributions to a marriage. However, that does not mean that the Judge will always split the pot down the middle. In some cases, that does work. In others, particularly where there are young children, one spouse will need more than half of the available assets to be ok.

Don’t guess at what the rules are – and DON’T rely on the internet. Take advice.

Advocate Claire Davies
This article first appeared in Connect February 2020

What’s mine is yours, what’s yours is mine.

Posted on by Russell Davies
All divorcing couples need to sort out their finances.  The family court has considerable power when it comes to arguments over money.  A judge can order assets to be sold and can decide how the proceeds should be divided, they can order one spouse to pay a lump sum to the other or to transfer assets to them.   They can order a spouse to provide their former partner with an income – potentially for the rest of their life.  How does the court decide what to do? The law in this area has become complicated, but the basic principles are straightforward.

All assets are in the ‘pot’ and must be disclosed regardless of whose name they are in, when they were acquired or where they came from.  That includes pensions, inherited assets and business interests.  The court will consider the assets globally and decide how they should be shared.  The emphasis is on equality.  In almost all cases the court will treat spouses as having made an equal contribution to the marriage, even if one of them was a homemaker.  Assets will generally be shared equally unless there is a good reason to do something else, and most often that reason is ‘reasonable need’.  One spouse may be in a weaker financial position than the other often because they have focused on caring for the family.  The court may take into account the nature of the assets – not all assets are easily realisable or risk free.  If assets were generated before the marriage, after the separation, or were inherited that may also be relevant.  The length of the marriage will be an important factor.  All of this adds up to the court doing what is ‘fair’ in a particular case although the outcome can feel anything but fair to those involved.

If there are children it is quite likely that one parent will pay child maintenance to the other.  That is often calculated as a percentage of their net income, Jersey tends to broadly follow the English guidelines.  There may also be school and university costs to pay.  On top of that, if there is insufficient capital to meet everyone’s needs, a higher earner may well find that they have to pay spousal maintenance to their former spouse.  The amount will depend on their ability to pay it, and the needs of their spouse.   In these days of equality, all spouses must do their best to improve their own position and it is now less likely that spousal maintenance will be paid for many years.

The process can be a minefield and specialist advice is important.  Legal costs can be high, and may even become an obstacle to a fair settlement if they get out of hand.  All clients should discuss costs with their lawyers.  You may need to negotiate a payment plan that will enable you to retain the lawyer of your choice, whilst structuring legal fees in an affordable way.

Divorce is never easy.  The majority of couples will, however, reach an agreement that they can both live with.  At the end of the day, perhaps that is what ‘fair’ means.

Advocate Claire Davies
This article first appeared in Connect April 2019

Family Disputes – Positively charged

Posted on by Russell Davies

“Marriage is really tough because you have to deal with feelings… and lawyers.” – Richard Pryor

All family lawyers know that people come to us during one of the most stressful periods of their lives. Whether they are separating, divorcing or struggling to agree arrangements for their children our clients are inevitably worried about the future; they are often sad and frightened. It is important that people in this position pick the right lawyer who will understand their particular needs and who can give them specialized legal and emotional support. Our clients have to feel comfortable sharing their private thoughts and feelings with us, and they have to trust us to achieve a good outcome and to respect their privacy in a small community. We help them see that there is light at the end of the tunnel. As if that wasn’t enough, parties to family disputes have to deal with the financial consequences of their situation. If they are divorcing, they have to trust their lawyer to help them navigate the sometimes complex rules relating to the division of assets and income, and the outcome will not always seem fair. If they are trying to resolve arrangements for children, they may have to make difficult concessions. Feelings will run high. And then they have to worry about the legal costs which will inevitably drain the family finances. Unfortunately, legal fees in family cases can easily spin out of control. So, what can lawyers and clients do to keep costs down?

“A lawsuit is a fruit tree planted in a lawyer’s garden.” – Italian Proverb

Most family lawyers in Jersey still charge on a time spent basis, and family disputes are time consuming and can be unpredictable. Be prepared to ask about fixed fees and payment plans. A good lawyer will always be happy to hold an open discussion about their approach to billing. They should avoid duplicating fees if more than one lawyer is working on your case, and their fees should be reasonable for the job that they have been asked to do.

In the UK, the Legal Ombudsman advises members of the public to raise ten points when using legal services, pointing out that lawyers should provide clear information about costs:

  1. Will I be charged for a consultation?
  2. How do you cost your service?
  3. Can you tell me more about the way you charge?
  4. What is a fixed fee and what will it cover?
  5. You charge an hourly rate but I’d like an estimate of the cost of the whole service. What will my final bill look like?
  6. Could my costs change? How will you let me know if they do?
  7. Are there any extra costs?
  8. Can I get help with the cost?
  9. When will I be billed and how long will I have to pay? Do you offer payment options?
  10. What happens if I disagree with the amount I’ve been charged?

In Jersey many of these questions should be addressed in the engagement letter sent to the client, but don’t be afraid to ask these questions during the first meeting or telephone call.

“Lawyers spend a great deal of their time shovelling smoke.” – Oliver Wendell Holmes, Jr.

In family disputes, a lot of time and money can be spent writing, and responding to, bad tempered correspondence between opposing lawyers. There is an obvious temptation to try to gain the moral high ground when, in reality, it will rarely affect the outcome of a case. Try to avoid it.

“Avoid lawsuits beyond all things; they pervert your conscience, impair your health, and dissipate your property.” – Jean de la Bruyere, French Philosopher & Essayist

Court cases cannot always be avoided, but where family disputes have to come before a judge the proceedings should be dealt with effectively, efficiently and respectfully. The Court will do its best to help parties manage the litigation, but clients should always have a clear plan of action when embarking on litigation. Understand that family law is highly discretionary and that there is no guarantee of success.

“A lean compromise is better than a fat lawsuit.” – George Herbert, Poet

Your lawyer should always set out all of your options and be able to explain the up side and down side of each of them. Legal costs should be proportionate to the case, and all clients should be encouraged to find a compromise if possible. This is particularly true in family financial disputes. A family lawyer should be happy to guide clients through the process of settlement, using mediation or other dispute resolution tools where appropriate. Be under no illusions, family litigation can be expensive and harmful to future relationships between parents. It can also take its toll on children.

“Discourage litigation. Persuade your neighbour to compromise whenever you can. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough” – Abraham Lincoln

Make sure that you and your lawyer work in partnership. Teamwork should help to ensure that you achieve an outcome to your case as quickly as possible and without breaking the bank.

Claire Davies, Advocate

February 2018