Knowing what to expect with regards to a financial settlement in divorce the financial proceedings (also known as a FDR hearing), can help you to prepare for what may be ahead. Before going into more detail about financial proceedings during divorce, it’s important to say that court should always be viewed as a last resort. Court proceedings can be time-consuming and costly and can add to the stress already on the whole family, during what can often be a very difficult time.
Our expert solicitors shall encourage you to reach an agreement with your partner outside of court and can advise you on a number of different ways that could enable you to do this, such as solicitor-to-solicitor negotiation or mediation.
Indeed, most couples will have to attempt mediation before heading to court, unless there are compelling reasons why they can’t. Speak to our expert solicitors for more information about this. Before we go into more detail about the financial dispute resolution hearing itself, it’s a good idea to take a brief look about how we get there.
If you can’t come to an agreement about how your assets will be split upon your divorce, you may need to go to court. In order to do this, either you or your spouse would need to make an application to court, by filling in a form, known as a Form A. Our expert solicitors can help you with this.
There is a fee involved, which will need to be sent to the court with the form. If you send the form, you would be the applicant and your spouse would be the respondent (the court will notify the respondent). You and your spouse should then receive a timetable from the court, notifying you of what is going to happen next.
A form E is a document about your financial position, which you and your spouse would need to fill in and send to one another and the court, a minimum of 35 days before your first court hearing is scheduled.
You will be required to provide a range of different information on your form E, such as any assets you own and how much you earn. Some evidence will also be required to be attached to your form E. Your solicitor should be able to help you with this.
This form will give the courts detailed information about your finances, so that a judge can make a decision about how your finances should be split when you divorce.
Sometimes, even if you don’t go to court, you may be asked to fill out a form E. This is so that both you and your spouse are providing the same amount of information about your finances for the negotiations ahead.
Some couples reach an agreement after filling in the form E, without the need for any more court proceedings, as it provides them with further information to fuel more negotiations.
It is important to ensure that there is full and frank disclosure when it comes to filling in your form E. If you do not disclose your full financial position, you could be found to be in contempt of court, which, ultimately, could result in you going to prison. Speak to your solicitor for further information about this and other possible consequences.
Some people opt to have an experienced solicitor fill out their form E on their behalf, so that there is no room for error.
If you or your spouse have questions regarding each other’s form Es, you (or your solicitor) can prepare a questionnaire that consists of questions that you want your spouse to answer.
The first court hearing, called the First Directions Appointment (FDA), will take place around 3 or 4 months after the first form (Form A) was received by the court. The main purpose of this hearing, is to ensure that all parties (including the court) have the information needed to make a decision regarding the financial settlement.
The court can make various directions to enable any disputes to be resolved at this stage, that each party may have to comply with. These could include an order to get a property valued or for any further questionnaires to be answered and exchanged by a certain date.
This hearing can sometimes be used as an FDR hearing, if matters are relatively simple and full and frank disclosure has taken place. Sometimes, an agreement is reached at this hearing, so there is no need to proceed with the expense of further court hearings.
Formally incorporated into court proceedings in June 2000, the financial dispute resolution hearing is the second court hearing.
It was designed so that the parties involved in the proceedings, could discuss and attempt to resolve any issues with regards to their financial settlement, with the ultimate aim of reaching an agreement, with the help of a judge.
In the Financial Dispute Resolution Appointments: Best Practice Guidance produced by the Family Justice Council in 2012, the FDR hearing was talked about as an “innovative development”, which is there to help parties resolve the “real issues in the case, at a time and in a manner intended to limit the overall financial cost for the parties, to reduce delay in resolving the case and to lessen the emotional and practical strain on the family of continuing litigation.”
The FDR hearing is an opportunity to openly discuss and negotiate. Sometimes, refusing to negotiate could result in an order for costs.
As well as full and frank financial disclosure, it is also important that you and your spouse provide the court with details of any previous offers of settlement that have been made and subsequently rejected by you or your spouse.
At the FDR hearing, the judge should be able to provide you and your spouse with an indication as to what your final settlement could look like, if a judge was asked to decide it at the Final Hearing.
This is not binding. The judge at the FDR does not make a final decision regarding your financial settlement. If you cannot reach an agreement and progress to the Final Hearing, there is no guarantee that the judge at this hearing would reach the same conclusion. However, many people find this to be a ‘turning point’ and reach an agreement soon after hearing this ‘objective’ point of view from the judge at the FDR.
The judge at the FDR hearing should also advise you and your spouse of how important it is to reach a settlement at this stage, in part because of the expense of a Final Hearing.
Additionally, judges may also remind both parties of how unpredictable a Final Hearing can be.
It’s important to understand that the FDR hearing is ‘without prejudice’. This means that if you do not reach an agreement in this hearing, these negotiations can’t be referred to in court proceedings if they continue after this point. Anything said in the FDR hearing is usually not admissible as evidence at the Final Hearing.
Additionally, this means that the judge who hears your case at the FDR, will not be the same judge as the one at the Final Hearing (if you proceed to this).
The judge at the Final Hearing will not even know the FDR judge’s indications of how your financial settlement might look if a judge was asked to decide it at the Final Hearing.
It is often the case that an agreement is reached at this stage in proceedings, before the Final Hearing. If an agreement is reached, the judge can then endorse your financial settlement and make a binding court order. If, for example, you think full and frank disclosure has not taken place, this can be brought up at the FDR hearing and the judge may make directions with regards to further disclosure.
Normally, an FDR hearing will last for around an hour. However, it is often necessary to be at court longer than this, so that negotiations can take place and both parties are often told to expect to spend the whole day at court.
You would usually meet your solicitor and/or barrister before the hearing. Sometimes, an agreement can be reached between legal representatives of each party (based upon their clients’ instructions) before the FDR hearing itself.
It is worth pointing out that although there are often many advantages to settling at this stage, there are also risks and you are under no obligation to settle at the FDR. Speak to our expert solicitors for more information about this.
Yes. Our expert solicitors would usually encourage you to continue to negotiate with your spouse/their solicitors, with the aim to reach an agreement before the Final Hearing.
If you can’t reach an agreement at the FDR hearing, the judge will then give you a date for the Final Hearing. This hearing will normally not take place for month or two (sometimes longer), so any interim arrangements would usually have to continue until then.
However, as mentioned above, in many instances, negotiations can and do continue, so even if an agreement is not reached at the FDR hearing itself, a Final Hearing may still not be necessary if an agreement can be reached beforehand.
Indeed, hearing what a judge had to say at the FDR hearing regarding what your financial settlement could look like if a judge was asked to decide it at the final hearing and having time to digest this information, can sometimes result in a settlement being reached soon afterwards.
Your solicitor may advise you that a meeting a short time after your FDR hearing with your spouse and their legal representative, may be a good idea, so that negotiations can continue outside of court but with the judge’s indication of a possible financial settlement now known. Sometimes, these negotiations soon after the FDR hearing can be successful, even if no agreement was reached at the FDR hearing itself.
Final Hearings are relatively rare, as agreements regarding the financial settlement upon divorce are often reached before this stage. However, sometimes an agreement cannot be reached and a Final Hearing is necessary.
At a Final Hearing, it is a judge who will make a decision about what your financial settlement will look like. As we discussed above, this will not be the same judge as the one who heard your FDR hearing.
It is at the Final Hearing where you and your spouse will be required to give evidence under oath and answer questions posed by your spouse’s legal representative. Judges can make various orders at final hearings, including the sharing of a pension or the sale of a property. A judge may also order maintenance payments or the payment of a lump sum.
Although court should always been seen as a last resort due to the expense and often lengthy nature of the process, in some cases an agreement cannot be reached and it is necessary to ask the courts to become involved.
Here at Austin Kemp, although we will always encourage our clients to reach an agreement outside of court, our solicitors have the experience and expertise required to take your case to court if necessary. Get in touch with our expert solicitors for more information.
Our expert divorce solicitors can help you with a range of legal issues relating to your financial settlement in divorce, including:
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