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Should I Separate or Get Divorced?

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Should you separate or divorce? Ultimately that has to be your decision but most family law solicitors say it is best to take some family law legal advice before deciding on which option best suits you.

Online and London Family Law Solicitors

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

The decision to separate

The decision to separate, whether it is a trial separation or a permanent one, is never taken lightly. When you decide to separate then there is normally no need to get divorced immediately unless you need to take urgent action which is best done or can only be done within divorce proceedings. For example, if you are concerned that your husband or wife has or is intending to transfer or sell assets with the intention of reducing your divorce financial settlement. Delay in starting the divorce proceedings could prejudice your financial situation as you could secure an urgent injunction to stop the disposal of money or property until you reach a divorce financial settlement by agreement or the court makes a divorce financial court order.

If there are no pressing financial, child law, or domestic abuse issues that may justify a quick decision on starting divorce proceedings, you should not feel rushed into starting a divorce.  Family lawyers say sometimes people put off seeing a divorce solicitor as they are not sure whether divorce is the best option for them. A family lawyer won't pressurise you into applying for a divorce but instead will explain the divorce court procedure and advise on the advantages and disadvantages of delaying starting divorce proceedings.

No-fault divorce proceedings

It used to be the case that many couples delayed starting divorce proceedings until they had been separated for at least 2 years so they could get an amicable divorce rather than start a divorce petition based on their spouse’s adultery or unreasonable behaviour. Delay is no longer necessary because the UK government has introduced no-fault divorce so you no longer have to explain in court paperwork why you want to get divorced.

Reaching an agreement on child custody and contact arrangements

Reaching an agreement or a resolution on child custody and contact arrangements is possible whether or not you decide to separate or divorce. That’s because if you reach an agreement with your partner then your parenting arrangements can be recorded in a parenting plan document.

If you can't reach an agreement on child custody or contact then either you or the other parent can apply to the court for a child arrangement order. This type of order will state if parenting is shared or will say who is the parent with primary care and the contact arrangements between the child and the other parent. You can start a child arrangement order application whether you are separated, going through divorce proceedings, or divorced.

Whatever the status of your relationship, family law solicitors always recommend that you try to reach an agreement over child custody and contact rather than apply to the court for a child arrangement order. That’s because an agreed resolution is quicker and less expensive than court proceedings.  A family law solicitor can guide you through the type of court order the court might make if one of you decided to start a child arrangement order application. That way when you are negotiating an agreement you can be confident that the proposed child custody or contact arrangements are the sort of thing that you might expect to achieve if you asked a family law judge to make a child arrangement order.

Reaching a financial settlement

If you separate then you can reach a financial settlement by agreement. You should record that agreement in a separation agreement. The agreement can be converted into a binding financial court order if you or your partner later decide to start no-fault divorce proceedings. A family law solicitor can help you reach an agreed financial settlement, draw up a separation agreement, and later help you to convert the agreement into a binding divorce financial settlement.

There are some drawbacks to negotiating a separation agreement rather than securing a financial court order. For example:

  • If you agreed to share pensions this cannot be implemented by the pension company until there is a financial court order that includes a pension sharing order. This order can only be made within divorce proceedings. The order can be made by agreement and without the need for a court hearing
  • If your husband or wife won't comply with what was agreed in the separation agreement you need a court order so you can apply to enforce the financial settlement. Enforcement may be necessary if, for example, you agreed to sell the family home and split the equity but your husband or wife won't agree to put the house on the market or won't agree on a realistic house sale price as they want to stay in the house for as long as possible

If you can't reach an agreed financial settlement then you need to start divorce proceedings to be able to apply to the court for a financial court order. That’s why it may be in your best interests to get divorced rather than simply separate. Examples of when it may be necessary to start divorce and financial settlement proceedings include if your husband or wife:

  • Will not provide full financial disclosure as you can't negotiate a fair separation agreement unless you both fully disclose all your money and property
  • Is planning on going overseas and you are concerned you won't be able to track them or their assets down
  • Is intent on retiring and you are worried that they will take their pension as a cash sum and spend it or that they will spend the proceeds of the sale of their business before you get a divorce financial settlement
  • Is at risk of bankruptcy and you are concerned that delaying securing a financial court order will prejudice your position with the trustee in bankruptcy
  • Will gain from a delay in reaching a financial settlement. For example, if you owned a business before marriage that is rising in value and will continue to do so

How OTS Solicitors can help you decide on a separation or divorce

The family lawyers at OTS Solicitors will talk to you about your situation and look at whether a separation or divorce would be the best route for you. For example, if you know your separation is permanent and know that you don’t want to negotiate a separation agreement and to then have to consult divorce solicitors at some later point to secure your no-fault divorce and financial court order, your better option may be to start divorce proceedings and get your financial court order now rather than wait.

Every situation is different and personal preferences differ. That’s why our family law solicitors take the time to understand what is important to you so that we can then guide you through your separation or divorce options so you can choose the best path for you.

Online and London Family Law Solicitors

For family law legal advice call the expert London family lawyers at OTS Solicitors on 0203 959 9123 or complete our online enquiry form.

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