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Legal separation or Divorce?

(9 Posts)
catkin14 Mon 01-Apr-13 12:57:08

I left H of 27 years 3 weeks ago,but i had been planning it for around 6 months.

I have had legal advice and also see a Relate counsellor, after many years of being criticised I tend to over think everything incase i have made a mistake..

Anyway, both solicitor and counsellor are telling me i should file for divorce immediately, solicitor because dates have to be given on the unreasonable behaviour reasons and they only have a certain amount of time before they become too old to use?

My DS of 14 is very cut up about the whole thing, and 27 years is a very long time.
Divorce seems very final, and in my over thinking frame of mind just wonder if its the right thing...

So, if you have split from H what did you do? What are pitfalls of LS?

mumblechum1 Mon 01-Apr-13 13:42:00

I agree with your solicitor, but you should bear in mind that you could delay applying for decree absolute.

As you're already separated there is no reason not to lodge the petition now, although you do need to supply a draft copy to your husband beforehand. Once he has acknowledged receipt of the petition you apply for the decree nisi, which is a conditional order of divorce. The earliest you can apply for the decree absolute is six weeks after the decree nisi, but you could simply delay applying for as long as you like.

You need to be aware of two things though.

1. 3 months after the six weeks elapses, ie 4.5 months after Decree Nisi, your husband could apply for Decree Absolute.

2. If you apply for DA more than a year after DN you have to file a statement confirming that you haven't reconciled during that period. This is just a formality and won't cause any problems.

mumblechum1 Mon 01-Apr-13 13:44:43

Sorry didn't tell you the pitfalls of a judicial separation:

1. You have to come up with exactly what you'd say in the petition except that you don't ask for an order dissolving the marriage, just acknowledging that you're separated.

2. You have to go through the whole thing again when you go for divorce.

3. You are paying twice.

Frankly there is no point in going for a JS unless you have some religious reason not to just go for a divorce and get it all over and done with.

Your son would probably find it easier to adjust if things are final rather than hanging in the air, potentially for years.

Xenia Mon 01-Apr-13 16:01:16

Agree - no point in paying twice. Judicial separations tend to be for people who for religious reasons will never ever divorce but they want legal finality on their finances.

However if you think you may change your mind and just want time loads and loads of people just separate and divorce much later. One other risk though of that is that you may come into money that then has to be shared with him or visa versa particularly if there is not much money other than that you came into after separation (finances divided on divorce in England (not Scotland), not moment of separation)

catkin14 Mon 01-Apr-13 17:13:37

Thanks for all that, very helpful.
If we were just separated would i still be able to have access to our money?
I have been a sahm for 15 years and he is a high wage earner.
Solicitor says it will be a straight 50/50 split due to the length of the marriage and that would leave me with a reasonable sum of money.
It is me that is wanting to separate - he is controlling and EA and i have lost my love and respect for him, but i still feel very guilty that i will be taking money that was for 'us'...if that makes sense.

Xenia Mon 01-Apr-13 17:20:07

If you just separated you can agree anything you like as regards money. Most couples reach agreement between themselves
If he will not reach agreement with it you can apply for the court to decide the sum for immediate regular monthly payments from him. Others may be able to advise you better than I can. Plenty of couples foolishly in my view split their capital / house value etc at separation and think they have sorted it all out but in fact until they finally divorce and have an agreement approved by the court either can later apply for more so that is the risk in just separating rather than getting it all finished.

If he earns more than you do he might have to pay more than 50%. I earned more than my husband and he got about 60% (and agreement I support the children alone). Remember to get a pension sharing order for 50% of his pensions as often that is the biggest asset - you can get that when you divorce too as part of it all (if he has a pension and it is bigger than yours).

Bonsoir Mon 01-Apr-13 17:33:08

If you H is the main earner in your couple I would advise you to divorce ASAP. IME the lower (or non) earner usually gets a much better deal from rapid divorce than from hanging about. Your DS' feelings will mature over time and whether or not you separate or divorce will make very little difference to him - he needs time to process the breakdown of his parents' marriage but the legalities won't change anything for him.

babybarrister Colombia Mon 01-Apr-13 18:21:43

Find yourself a resolution solicitor ie specialising in family law - look at resolution website. Fwiw I also think JS is bad idea and waste of time

Collaborate Tue 02-Apr-13 00:41:15

Also you can't get a pension sharing order on JS.

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