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Divorce - has anyone seen a barrister before deciding to go to court?(18 Posts)
I went to see my solicitor yesterday after getting my soon to be Ex's financial proposals for settlement. (Our decree nisi was granted last week on the basis of a 2 yr separation.)
Apparently his solicitor is a "combative solicitor" and he's started the ball rolling by asking for 90% of the proceeds of the house we have just sold. There's a lot more to it, basically involving money that I have inherited before, during and after we separated (though the date of separation is a matter of opinion!).
Anyway My solicitor has suggested that we see a barrister who specialises in this sort of thing before we proceed with our reply and I don't really understand why. My solicitor is a qualified arbitrator so I would have thought he'd be able to come up with a good enough suggestion for settlement - or is it that he realises it will got to court and needs to know how the court would probably settle things?
BTW both our solicitors are apparently the best in this area - not just picked out of the phone book!
Any suggestions gratefully received...
The difference between a solicitor and a barrister is similar to the difference between a GP and a hospital consultant. A solicitor or GP needs the knowledge and experience to recognise many different conditions and when necessary to signpost patients/clients to the appropriate specialist. A consultant and barrister have more in depth knowledge and experience within their particular speciality. DOes that help?
A barrister is someone who trains specifically for court work and that is virtually all they do. Therefore if you're thinking about going to court and it's something that is not a run of the mill application, like yours is, then it makes sense to consult a barrister. You solicitor will be an expert in negotiations for finances - not in battling it out in court like a barrister.
Seeking an opinion from counsel when there is so much at stake, presumably around 40% of the equity in the property, is a very sensible suggestion on your solicitor's part.
Yes it does..a bit. I just wondered why he's suggesting this at this stage after just having received my STBEXH's proposals and we haven't even replied to them - and he is an arbitration solicitor so he should have a pretty good idea himself. I can only think that he realises it is going to get contentious and is getting prepared - all my assets are inherited/brought into the marriage and he's asking of 90% of the house proceeds!
whoops - just read the last post. So it is a standard thing to do then. Thanks for that. I just hadn't realised that consulting (paying for) a barrister could come so early on.
Any suggestions to help me prepare also gratefully received. I think I'm going to revisit the budget for the future as I've missed a lot of stuff on there and it will demonstrate that I am living beyond my (limited) means atm
The idea of involving the barrister early on is to see if court is actually viable. Better than paying for your solicitor to prepare a brief, the barrister to prepare and then attend for the best part of a day for a hopeless case. The barrister may also be able to help build a better case for settlement and get you a better deal in negotiations out of court.
Thanks for that - it's put my mind at rest somewhat.
I think that depending on what he says we might try mediation rather than court if all parties agreeable
I had to use a barrister for the financials. Loved him to bits. His brief was superbly written. Happy to discuss more by phone call or pm.
tiredandsadmum - did you end up going to court or did you both use a barrister to sort out the financials and come to an arrangement?
baby barrister (great name!) Err...what letter that will go out with what cost implications? Court costs?
As for any clear issues, so far they all seem to be very vague - non-matrimonial assets only taken into account if each side's needs cannot be met from the matrimonial assets etc.
All my assets are:
1. From parent/grandparent trusts pre-marriage (still have some in my name in original form
2. inheritance 15 months into marriage of 21 years - mostly used to buy and maintain matrimonial house and spent on DDs so don't expect any more than half that back but he wants 90% of the house proceeds!
3. Inheritance from my Mum who died 2010 which is why my STBXH is saying we haven't been separated that long and we have a divorce based on 2 yr separation. I have not as yet actually benefited from this inheritance as it is in the form of a house in another city which has not as yet been sold.
He has a reasonable job and a pension while I have been a SAHM and have used vastly more of my resources on the family than he has his income, so I highly resent the fact he wants half of all my assets as I know he will then probably take early retirement as he will be able to.
I actually went back to work part time 3 yrs ago as I needed the money for DDs - I had been paying DD1's uni accommodation but now she can get a maintenance grant due to my much lower income. I'm also getting Working and Child tax credits.
I rarely use a barrister in financial cases, apart from the actual final hearing (no offence babybarrister!) as I feel that I'm charging quite a lot of money for my expertise, and clients shouldn't have to pay twice. You could keep costs down by eg seeking written counsel's advice only and/or negotiating a fixed fee. If a meeting ("conference") is advised, perhaps the barrister will agree to seeing you without your solicitor there?
There are many variables in divorce financials, although you have clearly grasped the basics. Is there any fairness, or even logic, in yr ex's proposals? Sometimes it's "cheaper" to just grasp the nettle and get the case to a final hearing as quickly as possible, if you are dealing with an unreasonable or irrational other party...
Nappaholic - yes I wondered why my solicitor wanted to do this but I think the "other party" will be unreasonable - why should he be any different than when we were married? And that is why we need to send a clear signal to him. Plus his solicitor is apparently "combative" which means he is willing to go as far as it takes and forget being reasonable.
As for fairness or logic - basically his starting point was adding everything together including my as-yet unreceived inheritance, taking off his pension contributions pre and post marriage and dividing by 2. No mention was made of my pre and post assets, or the fact that he has a much greater earning capability, or I am housing DDs and the dog (ok one is at uni but they do come home!) In fancy he's written them off too and has no contact so tha he has no responsibility (he has started paying maintenance tho as we gave him 2 weeks before I went to the CMS)
Useful stuff - will read it - like learning a whole new language!!!!
Law - especially family law - is complicated and constantly changing, which is why legal advice is, in the scale of things, relatively expensive....if it was simple, you wouldn't need lawyers!
TWO lawyers though...I'm not so sure about!!! Some solicitors have been known to suggest "Counsel's advice" as a second opinion, just to reassure the client...perhaps when the client is a little (ahem) demanding, or particularly nervous?
Hmmmmm..am I being demanding? I don't really know in the scheme of things. I do know that the other half's proposals are certainly not fair. I'm not really nervous - more annoyed with STBXH - but then that was always his aim!!! As for reassuring me...I have had no reassurance so far so don't really know what to expect
Another member of my family suggested getting a second or even third opinion from other family law solicitors as a cheaper alternative to seeing a barrister but I don't agree with that.
I think if we were to litigate (if that's the expression) then we would be doing so from a good point with decent advice
I'm sure you are not "difficult"! But it sounds like you don't have much confidence in your solicitor, and maybe that's translated to him/her having less confidence in themselves...?
Seeing one or more other specialist solicitors and utilising a free initial interview is one thing, but won't give you much time to get over the details of your case, or to receive detailed advice. It may however give you the benefit of a different perspective on your case - not all family lawyers are the same, or the same standard, and all have different experiences. Maybe worth a try?
I do have confidence in my solicitor, but for the purpose of this thread was questioning why he would need a barrister's take on things before even putting forward our proposals or suggesting that we should go to court. He comes recommended, is an experienced partner & heads up the family law side of his practice and is one of the best in the area (My STBXH's being one of the other best)
I did actually see another solicitor to begin with for a free consult but was not comfortable with him...and his suggestions as to outcome sounded a bit too good!
Perhaps my situation is a little different as he is the one with the decent wage and pension and i am the one with inherited assets but not much work potential...we're not talking vast sums any rate but enough for a modest income.
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