Divorce solicitors: when is the best time to seek second opinions?
September 3, 2010 9 comments
After a wonderful holiday in Israel, it was a pleasure to return to work and start afresh. Then, as I read through the emails that had been sent by blog readers, I noticed one recurring theme. It is a subject on which I have commented previously: people seeking second opinions on their cases.
As I have always made clear, I am happy to help people in trouble and give them some advice pro bono. Why not? I don’t mind. And I do it. But this time there were plenty of people in trouble, desperately seeking advice. And (this is when I became quite depressed) in the circumstances, for many of them there was not a lot that I could do. It was too late.
So I thought I’d write a post, in the hope that if you recognise that you are going down a wrong route, you may still be able to do something about it.
The people who contacted me had all spent a lot of money with their respective lawyers. In one case, it was well over £50,000. In another, the reader had spent savings of £3,000. For these two people, it was money that they can ill afford – but they paid it and took their chance.
So why contact me?
Because these people believe that their cases have gone wildly wrong. Now they are desperate and seeking help when truthfully, with orders made, it’s too late. I can’t help them, but perhaps I can steer you away from these pitfalls.
Two common problems, it seems, are lack of communication between the client and the lawyer, and lack of proactivity by the client at the right time.
On these points, I have some experience of my own. A couple of years ago I became (very reluctantly) involved in a dispute with a neighbour, in a case involving a plot of land along the boundary of our home. I am not a conveyancer and I did not know anything at all about establishing a legal boundary to land. I discovered that the boundary plan at the Land Registry is not good evidence – and I didn’t know how to prove that a plot of land belonged to us rather than a new neighbour who had simply annexed it to his land and built on it while we were away on holiday. Determined that it did belong to us, and determined to have it back, I did my homework.
I spent hours every night and at weekends on the internet, researching the law and trawling for documentary evidence to prove that the land was indeed ours. It was quite a task and so I instructed solicitors who held themselves to be experts in that area. I can honestly say that I thought they were expensive… and, unfortunately, useless. In the end, when I received a whopping bill for what I considered to be negative advice and not very much work, I sacked them and took over the conduct of the case myself. I found my own experts and we won. Unusually and against my lawyers’ advice of its likelihood, the building came down and our boundary was re-established. As a sideline I was also pleased to discover much about the history of our home, about which I had no previous knowledge. I was able to restore, fully, our home’s integrity.
Work costs money, but the sum should be a reasonable figure that you can afford. If you can’t afford to pay the lawyer, then you don’t want to run out of money halfway through and have to cast around for “plan B”. In my case, I agreed to a high quote because I knew my case would be expensive. But when I realised it was going to be even more expensive than the quote and I wasn’t getting anything but negativity in return, I got out before I got in too deep.
2. A lawyer is not a magician! You need to help too. Don’t just sit there issuing ambitious demands. Worse still, don’t bottle up your hopes, concerns and decisions without letting the lawyer know how you really feel. If you want to settle for less, or pitch your case in a different way, then make sure that your views are fully discussed in detail – and that you receive written advice on the points you raise.
3. Get involved. A lawyer isn’t a mindreader, either. If you require maintenance while the case is ongoing, say so and make sure it is sorted out. If you are to be the recipient of a settlement, work out what you need in terms of income, capital and housing. Don’t overdo your requirements because it could go against you – as some of you have discovered.
4. Don’t mope around waiting to hear from your lawyer. There are legal limitations on “self help” and your lawyer will advise you about these, but I know from my own experience that the internet is a wonderful tool. It’s amazing how much information you can obtain (legally) if you think carefully and cast your net wide enough. The internet can also provide a wealth of detail about current law and cases and how these are resolved, so you can stay abreast of family law developments.
5. Be brave! Don’t be scared to tell your lawyer if you feel that something is not right, or you are uncomfortable about a recommended course of action. And if you don’t say a word at the time, why complain about it months down the line? What’s the point?
6. If you think your spouse is pulling a fast one, do something about it. Don’t just sit there and let it happen, only to complain bitterly at a later date. Are you a partner in a business? Read the figures, go there and see what is happening, visit the accountants and take copies of the documents you are lawfully permitted to copy. Visit the bank. Ask for copies of all memoranda relating to the company. This is particularly useful if you are being told that the business is failing.
Spouses are often on the company books and are perfectly entitled to go to work, so if you are, make the most of what can be a valuable advantage. You might find evidence ofmoney not being put through the books, or separate businesses hiving off profits. Perhaps an enquiry agent can help? Can investigations be made via a forensic accountant? In every case, ask your solicitor beforehand to make sure that what you intend to do is lawful.
7. Ensure that a good barrister is retained at the earliest opportunity. Ask to see a barrister in good time if your solicitor doesn’t mention it first. What “good time” means is different in many cases. In some, advice is needed from the beginning when there are complex issues, such as how to prevent assets from being dissipated. In other cases, it may be when a Form E is being readied, or after exchange when deficiencies in information are being considered. This is an important time, and you should be ready for it with your research and questions. You should have seen a barrister before the First Appointment if your case is not straightforward.
8. You aren’t playing Russian Roulette at an FDR. Don’t settle at the Financial Dipsute Resolution hearing unless you agree that you are in the right ball park and/or you are advised that the risks of going ahead significantly outweigh the risk of settling and obtaining certainty. If you aren’t comfortable with what’s on offer, keep going.
9. Use your time wisely. The time period between the First Appointment, the FDR and the final hearing is a lengthy one, but don’t waste it. Time does pass: before you know it, the next hearing will be upon you. You may well become frustrated and wonder what is going on. Make sure you communicate with your lawyer regularly, and discuss what you feel needs to be done. If you get a sense of things getting stuck, or bogged down, send a letter seeking clarification. Don’t send lengthy moans; send letters that are proactive.
10. If you aren’t happy with the outcome of a hearing, don’t let the time limit for an appeal lapse. If you believe that the judge was wrong, you may well be right! Once lodged, an appeal can sometimes be a useful negotiating tool when all else has failed.
Perhaps this advice will prove useful for some of you. Although it has come too late for recent correspondents, I hope that these pointers have come in time for others.
Image credit: emily lemsip.
September 3, 2010