31 May 2018
If I were getting divorced I would want a neutral but experienced outsider to tell me the fair solution so I could just agree and move on with life.
Ideally, that would be my own solicitor. But fairness in this context is not simple. Rarely will the two solicitors be coming up with the same recommended outcome. Even though the law has been clarified in making the starting point the equal division of all assets built up during the relationship, there are invariably arguments to be run. The law is highly discretionary still and, if there is masses of money, there might be an argument as to why the percentage going to the financially weaker spouse is less than half. If there is not much capital but a huge income, for example, or inherited wealth, the reverse is true.
There is then the point that your solicitor is likely to want to give you a prediction that leaves you feeling better rather than worse.
It is easy to see how polarisation can occur and fairness can become distorted. This is even before taking account of all those psychological factors such as feeling that you are being undervalued or attacked for the way in which the marriage ended.
However you embark on the resolution of financial issues, there will be moments along the way that will provide you with the opportunity to achieve a dignified exit.
Within the court process, the FDR hearing (Financial Dispute Resolution Hearing) is one of these moments. It will take place before a Judge who hears both sides putting forward their proposals. The Judge then gives “an early neutral evaluation” of each of the issues and, typically, recommends an overall settlement.
If you can afford it, it is worth opting for a “private FDR”. This can be done at an earlier stage, outside the court process, once you are both confident about the financial picture and when the momentum for resolution is high.
Deciding to follow a sensible recommendation has a lot to be said for it. It is easy to become increasingly entranced by your version of the facts and your lawyers' version of the arguments. This happens on both sides but what you really need is realism and clarity.
A rule of thumb well known to lawyers is that if you plough on, the gap between you just before a Final Hearing will probably be no more than the costs of carrying on. Splitting the difference protects you from a maverick Judge, from wasting that money on the lawyers, and from the way in which hostility ratchets up if you face one another over a Court room floor.
The Judge at trial may come up with a different view from the FDR Judge – but his or her job is not like solving the Times crossword – there is no one right answer. There is a spectrum within which the answer will always be right, in that it will be unappealable.
Divorce is never easy but identifying the moments when settling makes sense empowers you to make a deal and move on. It makes it a lot easier for you, your children, your friends and probably your pocket.