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Divorce/separation

Here you'll find divorce help and support from other Mners. For legal advice, you may find Advice Now guides useful.

Original poster

Help urgently needed worried about what solicitor is telling me

47 replies

Changeisahead · 15/08/2019 21:16

So my solicitor is claiming that I may not get to see my position statement written by my barrister. Until the day of course hearing.

Everyone one else I know has either written theirs or had their legal help write it and then signed it.

My sol told me today my barrister could not keep rewriting my position statement if my ex makes an offer, its irrelevant if he makes an offer, it wont effect my position.

I have told them I am completely unhappy about this and I want to see a draft copy of the position statement, they said they will ask the barrister but they cannot guarantee this. It worries me it could say anything and at that point when in court I can do nothing about it.

My hearing is next Thursday. I want to keep the house and my husband wants to sell its the second hearing.

I am considering if they wont give it to me, if I am likely to lose with his help I might as well lose on my own and not have a bill, so am considering sacking him and representing myself.
advice needed please

OP posts:
Original poster
Changeisahead · 15/08/2019 22:22

anyone???

OP posts:
NSA2103 · 15/08/2019 23:32

At second hearing, I reckon you need representation . Otherwise, negotiations are hard to make on your own. Unless you are experienced in court process and divorce.

Have you considered just trusting your solicitor and barrister, who will have more experience?

I say this having now built up some decent experience myself, self representing.

Original poster
Changeisahead · 15/08/2019 23:57

You missed the point I was asking about my position statement they wont let me see that that bizarre why not

This comes from a solicitor who is adamant that my children home should be sold even though I have no way of buying and will rent forever

OP posts:
hopefulandstrong · 16/08/2019 01:05

Dp just had his final hearing over a child case. His ex's barrister handed over a 8 page position statement and his barrister looked at the first page and ignored it. It wasn't used not mentioned.
It maybe different with you but it's best to have a basic statement which is straight to the point and base on your request that isn't replying to him.
Also my df ex wife wanted to keep the house and expected him to live in shared accommodation, the judge wasn't impressed with that at all. And was told to sell the house based on her being extremely unreasonable.
Good luck though

AMAM8916 · 16/08/2019 09:31

Do you want to keep the house and buy him out?

Original poster
Changeisahead · 16/08/2019 10:33

I cant buy him out, I am unable to get a mortgage. I dont and never will have the earning capacity to get one, Im 52 and dont have a career I am doing ad hoc jobs to feed my children. I will be in rented for the rest of my life and on benefits. Moving form rental to rental. My earns in excess of 100K I earn about 4K.

Thanks for points above about position statement, even if its used or not used I havent seen it and am being told I might not until the day! which was the point I raised.

OP posts:
AnchorDownDeepBreath · 16/08/2019 11:24

This comes from a solicitor who is adamant that my children home should be sold even though I have no way of buying and will rent forever

Your solicitor thinks your house should be sold?

Have you been given advice on how likely it is that you'll be able to keep the house if you can't afford to buy him out? And what the limitations of that would be?

I really wouldn't self represent in this situation; I'd imagine you'd be damaging already fragile chances.

swissmilk · 16/08/2019 13:51

Is this for the Final Hearing op?

Original poster
Changeisahead · 16/08/2019 22:35

No its not a final hearing its the second hearing. The Matrimonial causes act states that the children's needs are paramount. So therefore a home has to be provided for them. My Ex can afford to pay the mortgage. I cant he knows that.

OP posts:
Original poster
Changeisahead · 16/08/2019 22:38

All ready slim chance how do you know that? From what I have said?

OP posts:
theendoftheendoftheend · 16/08/2019 22:42

I don't really know whats going on here but based on your posts do you think you might be (understandably but possibly to your detriment) coming across as a bit aggressive?

Original poster
Changeisahead · 16/08/2019 22:42

Courts dont leave one person weaker than the other, this has been said many time on this board. The children come first, in my first hearing the judge would not hear of the house being sold. My ex asked within two mins of being in court and kept asking the judge just ignored him.

He said this home is the only tenable asset these children have they need a home. So we need to hang onto this. if the house is sold any equity I get which isn't a lot will be gone in a two years, I then stand to be homeless as I wont get any benefits as I had savings.

OP posts:
swissmilk · 16/08/2019 22:58

I'm confused....have you had the FDR? Or is that what's coming up next?
As far as I can gather (still to get to FDR myself) at the FDR you are supposed to negotiate with the other side and if you can't the judge will briefly look at your situation and 'guess' what the outcome of the Final Hearing might be to save you actually having to go to Final Hearing ... but of course if one or both of the parties are determined to go to Final Hearing it's a bit of a waste of time (apart from you might get a rough idea of what's to come at Final Hearing).
You don't have to settle at the FDR and you shouldn't unless you are happy with the deal put forward by the other side, esp if you don't have legal representation.
Hopefully what I have written is accurate, if not someone please correct me!

Otter71 · 17/08/2019 06:47

You are 52. Similar age to me.

My kids are 14 and 18, how old are yours? The needs of the children are paramount but only until they reach adulthood. I split with a 17 yo and my now 18yos needs were considered irrelevant as he would be 18 before it came to court. Obviously if you had the children very late they may still be very small. If so how long were you together? That also has relevance.
Equally however if you have a home for which there is lots of equity then even with a half share you may be able to get something albeit somewhere smaller in a less desirable area...

Are there medical reasons you can't work full time ? 4k is clearly not a full time wage as it would be way below national minimum. I suspect the judge will advise you need to .find ways to increase earnings unless there is a good reason why not.
I changed career to a much lower paid one because he couldn't cope with my high paid male dominated career but that has been painted as a straight choice and him being very reasonable by supporting retraining whilst we were married. Is your salary so low because you are retraining? If so they may support spousal or be able to stay in the house for the period of training?
I accept that this will be a massive lifestyle change and I accept that you may well have 20-30 year old anecdotal evidence of the mother keeping everything, but the balance may have moved on towards clean breaks and an expectation of both partners working...

Good luck

PotteringAlong · 17/08/2019 06:54

If you’re 52 how old are your children? Could you use the equity as a deposit with a mortgage if you got a permanent job?

Horehound · 17/08/2019 07:01

You think you should keep the house and your ex, who I presume has been paying mortgage doesn't get any share of it?? Is that what you're saying?

HeronLanyon · 17/08/2019 07:07

Do not represent yourself op.
Courts do put welfare of children ‘first’ but it’s always a messy mix
And ‘first’ does not mean ‘to the
Exclusion of everything else.
I am at criminal bar but very familiar with family bar.

There are lots of reasons why position statements (and their equivalent in other work) may be shown to client later rather than earlier. Sometimes to do with the need for finality - where clients instructions change frequently - or are intractable in impossible expectations etc.

Not at all saying this the case here.
Just calmly ask your solicitor to see it and if not ask when you will see it. As the main purpose is summarising your position for opponent and judge they are sometimes drafted right up to the deadline.

I lost track of the timeline here but think the hearing is soon so good luck op.

Waytooearly · 17/08/2019 07:16

I practice law in a different area, so can't help with the family law element, but in general I can say that if you've decided to instruct sol and barrister you need to trust them. Alternatively if you've decided you don't trust them, fire them. Don't instruct professionals and then fight with them.

If you have questions then lay them ot calmly for the sols to answer.

As a lawyer, there's nothing worse than trying to run a case for someone who is so worked up that they stop trusting you.

HarryRug · 17/08/2019 07:20

Surprised no one here has pointed out that you are the client and your solicitor and barrister have to do what you instruct. Tell the solicitor you want to see the Position Statement by X date. It’s a reasonable request. Do not represent yourself, you are not qualified. People who sack their legal teams to represent themselves are often viewed as unreasonable and irrational. If you have public funding have in mind once that Representation Order is revoked you probably will not be able to get a new one so you would be without lawyers for the rest of the case.

larrygrylls · 17/08/2019 07:22

Is your barrister saying you can’t see the statement as it is not drafted yet, or they just don’t want to show it to you? You are ultimately paying them for a service and should call the shots (or sack them). Clearly they are professionals, though, and expect a level of trust in their abilities. However this should be balanced with client service.

Personally I would be pro active and draft what you want to see in the position statement and send it to your barrister or solicitor and ask them to confirm that what you really care about is in there.

Be careful re the settlement, though. The children’s needs are paramount until 18. However, assuming your children spend some time with your ex, he also has the right to provide them with suitable accommodation (someone will correct me as to this being the children's rights, but it comes to the same thing in practical terms).

If your ex earns over 100k per annum, your settlement should allow you to buy something, using your share of the home equity as a deposit, unless in central London of course. It may not be the area or size you want but may be the ‘fairest’ solution.

HarryRug · 17/08/2019 07:23

You could also come up with a list of bullet points of things you want in the Statement and email them to the solicitor saying what you want and asking for advice/explanation if counsel and/or solicitor advise against including any of your points.

Waytooearly · 17/08/2019 07:29

Yeah, that's a good solution: ygive them the bullet points and say, "Okay I understand about the drafting but I'm instructing you to include the following points in any iteration of my statement..."

HeronLanyon · 17/08/2019 07:31

Barristers don’t quite have to do what the client wants - barristers cannot-
Pursue something they know to be wrong or unreasonable or without foundation
Mislead the court (including in many situation by omission)
Act solely to please the client
Put forward argument knowing there is contrary authority or ignorant of contrary authors they ought to know of
Usually these ethical dilemmas are sorted out during conference with client and the situation explained either implicitly (where conflict is apparent) or in a more nuanced way. Where impossible barristers May need to withdraw as clients position out them at odds with ethical duties. Clients can of course sack representation - this frequently has costs implications and case implications. It usually comes about with intractable unreasonable (legally only) clients who want something impossible and will not accept that it is impossible.
Good luck op. It’s always a
Stressful time for clients and no one is ever behaving at their best.

Barristers are used and experts at dealing with these situations. It won’t always feel that way. Best to ask questions and listen. (Not suggesting you are not !).

Techway · 17/08/2019 07:36

Did you have FDA, rather than FDR? I think last minute statements are reasonably common and ime judges use them as background rather than detailed analysis.

Judges will look at what is realistic in the long term and as has been pointed out most now favour clean breaks. It does mean your position isn't strong and 4k earnings will need to be increased so that you are working to your capacity.

I know its very difficult but it is unlikely you will get financial support for long if the DC are teens. It would be best to consider that the house maybe a short term solution and think about how you could live. Are there are options to move, draw down on a pension at 55 to fund a house with a mortgage? Assume worse case scenario so you won't feel too distraught if a judge takes a harsh view (which can happen due to their personal views)

stucknoue · 17/08/2019 07:51

I don't know about the solicitor/barrister situation, we aren't using them (I'm processing it all for both of us, suits us). I've looked carefully into the law as we have very mismatched incomes, the key is that as the lower income partner we maximise our incomes - this means working part time school hours at a minimum with primary aged kids and full time once the youngest is at secondary, full time at minimum wage is around £17k. I've worked out that on a £75k salary I would be awarded £800 a month maintenance (kids over 18 but one has lifelong special needs) thanks to only advice and a patient barrister friend. Hope this helps

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