Tulsa Family Lawyer and Mediator
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The media-friendly term ‘Divorce Day’ does not sit well with me.
The first working Monday of January is frequently reported in the press as the day that divorce lawyers see a spike in enquiries as marriages meltdown across the country because of the pressures of Christmas.
Granted we do notice a spike here at Stowe Family Law in enquiries in January but then we also do in September after the school holidays, so it is not just tied to the pressure of Christmas.
I know too well that holidays can be stressful, highlighting tensions and unresolved issues. Most parents today work so weeks fly by, heads down, carry on. On holiday you look up and, in some cases, see the cracks.
But is this the moment that drives people to separate: an argument about the in-laws interfering, lack of presents or sheer exhaustion?
For me, it was so much more than that. I did not decide to leave my partner of 20 years because it was Christmas. I just knew that I had to survive Christmas, not just for my children but also for my wider family. Just like I knew I had to survive the summer holiday because the kids were so excited.
The decision to end a long-term relationship or a marriage cannot be tied down to a season or a holiday or the mother-in-law. It is so much bigger than that and runs so much deeper than that.
Separating is not just about the couple: you must think about the kids, the family, your friends, schools, the house, the garden, the expectations… And that takes a lot of time to think through.
So, this Divorce Day, let’s think for a moment about the couples behind the statistics. The ones that have painted on the smile for too long, the ones that haven’t, the ones who had the affair, the ones that didn’t, the ones where there was no drama, but they simply fell out of love.
These people are not just enquiry numbers. And I don’t believe that having a Divorce Day paints a true picture of the lives behind the statistics.
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Author: Stowe Family Law
At the end of my post here last Friday I mentioned briefly a story in the Law Society Gazette reporting that a former police officer who has set up a website linking the public with McKenzie friends has said that it is an ‘irrebuttable truth’ that family law does not need lawyers.
Apparently, the website “will link up around 100 former police officers acting as McKenzies with members of the public”. Quite why former police officers should be well qualified for the task of assisting family law litigants whereas family lawyers are surplus to requirements, I’m not sure. Perhaps it follows from the linked idea, also expressed on behalf of McKenzie friends, that family law is simply about common sense, a quality that maybe former police officers are believed by the public at large to possess.
Whatever, the idea that there is no ‘law’ in family law is nothing new. I remember it being mentioned way back when I was studying law, with students of other legal topics snobbishly suggesting that family law was an ‘easy option’ that did not test the grey matter in the same way that their more complex subjects did (in fact, I suspect that many of those who said this would not have lasted five minutes at the coalface of practising family law). I didn’t engage in the argument myself (I did study family law, but it was not until later that family law became my path), but I suspect that it irritated those who did intend to become family lawyers.
So is there any truth in the idea?
Well, it is certainly true that in practice much of family law is little more than common sense (I think, for example, of deciding upon arrangements for children following the separation of their parents), but the same can be said for other areas of law (and, indeed, many areas of human endeavour). After all, for example, lay people are tasked as jurors or lay magistrates to decide criminal cases, using little more than their own common sense. And even the interpretation of a term in some complicated contractual dispute may in the end boil down to the application of a dose of common sense.
But if common sense is used in the making of decisions, the decision-making process is, of course, guided by a legal framework. And that is as true of family law as it is of any other area of law.
Take, for example, financial remedy proceedings following divorce. A judge dealing with a financial remedy application is not free to simply come to whatever decision they see fit. They must be guided by the legal framework. That begins by a consideration of the factors that they are required to take into account by section 25 of the Matrimonial Causes Act 1973. But that is just the beginning of the process. Parliament specifically left section 25 ‘vague’, in the sense that it does not tell the court exactly what it must do in a given set of circumstances. Accordingly, in the 45-odd years since the Act was passed the courts have had to interpret section 25. This has led to the creation of a huge and ever-changing body of case law that must be learned by family lawyers.
Of course not all of that case law applies to every case, and yes, some cases are quite straightforward to decide. But if you do not have a legal training, how do you know that a given case requires little consideration of the law?
But the actual law is only part of it. On top of the law comes the procedure, and that can be every bit as complex as the law itself. A huge part of being a family lawyer is knowledge of the relevant procedure. In fact, many cases turn not on the interpretation of the law itself, but on the interpretation of the rules governing the procedure applicable to the case. Go into family litigation without a knowledge of the procedure at your own risk.
In short, the idea that there is no ‘law’ (and by that I include legal procedure) in family law is a common misconception, and one that is obviously going to be attractive to non-lawyers seeking to make money out of those unfortunates who can’t afford a lawyer and are no longer able to get legal aid. It is a myth, and a dangerous one, that could easily lead to misinformed litigants failing to achieve the outcomes that they seek, or even that they are entitled to.
The post The myth that there is no ‘law’ in family law appeared first on Stowe Family Law.
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Author: John Bolch
It’s a sorry admission to make but my Twitter feed is full of family lawyers and family law commentators so inevitably I have read again that Divorce Day is set to dawn.
A term coined by the press, Divorce Day refers to the first working Monday in January after the Christmas and New Year festivities when, apparently, lawyers must brace themselves for a spike in people enquiring about a divorce.
For many family lawyers, including me, this day is a myth. Granted, we have peaks in enquiries, September is often a busy month, but on no one day in the year do the floodgates open and people queue down the street desperate to get divorced. This is not Black Friday (another media-created phenomenon) or the first day of the Harrods sale or even the 6 am start Next sale.
Films, television, celebrity news and social media have all played a part in the transition of divorce as a taboo subject to a much more casual topic of conversation. Now, don’t get me wrong in many ways this is fantastic progress. Nobody should be stuck in an unhappy or abusive relationship. However, to trivialise divorce, to make marriage seem as returnable as your unwanted Christmas presents only serves to destabilise a cornerstone of our society.
The idea that spending too much time together at Christmas arguing over family politics or “New Year – new me” triggers a call to your nearest divorce lawyers only skates over the emotional internal wrangling those individuals are going through as they think about the impact on their spouses, their children, the grandparents and the wider family and friends.
The fairy-tale celebrity weddings that abruptly end within the year with a (fictitious) “quickie divorce”, sends a message that marriage is dispensable and show nothing of the hurt, pain and upset a divorce can cause.
Most of the clients I advise do not decide to get divorced because it’s a Monday or because it’s the new year. If I sensed that they had, I would urge them to look at options to try to save their marriage. Instead, most have been considering it for a long time, sometimes years. Making the final decision to speak to a family lawyer and get legal advice is part of a process. It’s a huge step and not something that is or should ever be dictated by seasons, by the time of year.
Behind the media coverage on Divorce Day are people and families dealing with a relationship breakdown and all the emotions that this brings. Let’s not condense that down into just one day.
This year, I hope that Divorce Day has had its day.
Julian Hawkhead
Senior Partner
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Author: Julian Hawkhead
First things first: Happy New Year!
OK, having got that out of the way, on to the latest family law news. Well, there is not much, actually. For obvious reasons the Xmas/New Year break is usually pretty thin on family law news, and the break just gone was no exception. However, there was one significant piece of news, along with an important debate about the future of legal aid.
The significant piece of news was that the Human Fertilisation and Embryology Act 2008 has been amended to provide that single parents who have had a child born through surrogacy are now able to apply for a parental order. To explain, under the law surrogate mothers and their spouses remain the legal parents of any children. Accordingly, the parents with whom the child is to grow up (i.e. the parents who commissioned the child from the surrogate mother) must apply for a parental order, which transfers the status of parenthood to them. However, until now a parental order could only be applied for by two people, in a relationship akin to a marriage. This situation was declared incompatible with the Human Rights Act by the then President of the Family Division Sir James Munby in a case in 2016, in which a single man was refused a parental order. The amendment to the law remedies the incompatibility. For further information about the amendment and its effect, see this post by Bethan Cleal, who is a solicitor in Stowe Family Law’s Winchester office, and a specialist in domestic and international surrogacy arrangements.
The legal aid debate was sparked by The Guardian newspaper, which ran a series of articles on the topic of the legal aid cuts during the period between Xmas and the New Year. The articles were clearly intended to coincide with the government’s review of the effects of the cuts, and included this account of the experience of a mother, who believes that a lack of legal aid led to her ending up in prison, deprived her of a life with her children, and rendered her homeless. It is hoped that the review, which is due any day now, will recommend that legal aid be reinstated, at least for early advice in family matters. No doubt the authors of the articles hoped that they might encourage the government to make such a recommendation, by making it clear just how damaging the cuts have been, creating a two-tier system for those who can afford legal representation and those who cannot, and even leaving many people effectively without a legal remedy. Of course, the articles didn’t tell us anything we lawyers didn’t know already, but hopefully they will at least have spread the message, thereby putting pressure on the government to take action to at least put right the worst effects of the cuts.
Moving on, I suppose I should mention one piece of ‘news’ that has occupied a few column-inches in the newspapers over the last week: the media has once again engaged in the annual event that is ‘Divorce Day’. I am not going to rehearse here the arguments as to whether ‘Divorce Day’ is a real or manufactured phenomenon, as in a sense it doesn’t matter: either you are involved in divorce proceedings now, or you are not. And if you are, I have set out my three top tips to help you get through, in this post.
And finally, the Law Society Gazette has reported that a former police officer who has set up a venture linking the public with McKenzie friends has said that it is an ‘irrebuttable truth’ that family law does not need lawyers. I knew I was wasting my time when I did all that training, studying all that law and reading all those cases…
Have a good first weekend of 2019.
The post A week (or so) in family law: Parental orders, legal aid and more appeared first on Stowe Family Law.
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Author: John Bolch
As of today, single parents who have had a child born through surrogacy are able to apply for a parental order in the UK, as the Human Fertilisation and Embryology Act 2008 (Remedial) Order 2018 comes into force. This means that they will be able to be recognised as their child’s legal parent and will extinguish any rights and responsibilities their surrogate had.
This is fantastic news, both for those single parents who decided to go through surrogacy before the law change with the knowledge that they would remain in limbo in terms of their parental status until/if the law ever changed, but also for those single parents who haven’t yet been able to find a surrogate due to the legal difficulties and uncertainty, to whom the door will now be open.
For those single parents who already have a child born through surrogacy, it is important to know that there is now a six-month period in which they can apply for a parental order. This will only remain open until early July 2019, and while it may be possible to apply following this, the application will likely be more complex, and so I would encourage all those who have had a child through surrogacy in the past, whether in the UK or overseas to act now.
We are looking forward to supporting many single parents who have either already had a child through surrogacy or those who are currently planning their surrogacy journey.
If you have any questions at all, or would like to get started, please do get in touch with me at [email protected] or on 01962 850408.
The post Single parents now able to apply for a parental order in the UK appeared first on Stowe Family Law.
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Author: Bethan Cleal
It is obviously trite to say that feelings can run very high in the course of family litigation. Such feelings are rarely conducive to a favourable outcome, so lawyers and judges do what they can to reduce them. It would not, however, be realistic to expect strong feelings to be eliminated entirely. The trick is to ensure that they are reduced sufficiently so as not to cause serious damage to that party’s case.
Sometimes, however, a party is so caught up in their feelings of ill-will towards the other party that they are not able to keep them away from the courtroom. And, as we will see in a moment, the ill-will can even spread to the other party’s lawyers, and even to the court itself, particularly if they believe that the case is not proceeding in a way that is favourable to them. The feelings can manifest themselves in many ways, but a common way is contempt for all others involved in the litigation, including the court. Needless to say, this is not likely to go well for the aggrieved party.
The recent case Quan v Bray is a remarkable example of this phenomenon, in which the husband was found by Mr Justice Mostyn to have a “contemptuous and arrogant approach” to the proceedings. In fact, the case caused much comment amongst family lawyers on Twitter, and none of it favourable towards the husband.
I have, in fact, written here previously about Quan v Bray, in this post. The case concerned a wife’s financial remedies claim, and the recent judgment related to the final hearing of that claim, before Mr Justice Mostyn in the High Court. The wife was represented by lawyers at the hearing, and the husband represented himself.
The case has a complex history (it began in 2012), and there is neither room here nor the need for me to go into its details. Essentially the wife at the hearing was only seeking maintenance, with her capital claims (e.g. for a lump sum payment) being adjourned because the husband did not presently have the capital to meet those claims, but might do so in the future. The husband claimed that he did not have the income to pay maintenance, and that he would not receive sufficient capital in future to make any capital payment to the wife.
Accordingly, the two matters for Mr Justice Mostyn to decide were: should the husband be required to pay maintenance to the wife, and if so how much, and should the wife’s capital claims be adjourned, or dismissed?
I now turn to the husband’s approach to the proceedings. Prior to the hearing, he had already blatantly defied court orders, both to disclosure documentation (which Mr Justice Mostyn believed would be significantly to the husband’s disadvantage, if revealed), and to pay maintenance pending suit to the wife, despite Mr Justice Mostyn finding that he had the means to pay.
But it gets worse. When dealing with his income in his principal witness statement, the husband had sarcastically suggested that he “might be able to earn some money as a drug dealer”, a suggestion that Mr Justice Mostyn described as “not only childish and facetious”, but also “directly and grossly disrespectful to the authority of the court.”
And the husband did not stop there. In the next paragraph of his statement he suggested that a further possibility for him to earn an income was by pursuing a career “extorting money” as a legal executive with the wife’s solicitors, although saying that he “would prefer drug dealing because it is considerably more ethical.” This, said Mr Justice Mostyn, went “beyond childishness and facetiousness.” It was “grossly insulting”, and reflected the husband’s detestation of the wife’s advisers. It was completely unacceptable that he should use a witness statement written for the court as a platform to vent his spleen in this manner.
In the light of the above, it is no surprise that Mr Justice Mostyn found the husband to be a thoroughly unsatisfactory witness, concluding that he had “been dishonest, manipulative, arrogant, menacing and contemptuous of the court’s authority.” In the circumstances he did not accept any of the husband’s evidence, unless it was either agreed or corroborated by clear contemporaneous documents. By contrast, he found the wife to be a credible witness.
He awarded the wife maintenance of £64,000 per annum, and adjourned the wife’s capital claims, concluding that it was “foreseeable that at some stage in the future the husband will have accumulated sufficient sums to make a proper clean-break capital settlement on the wife.”
Following the judgment the husband applied to Mr Justice Mostyn for permission to appeal. However, Mr Justice Mostyn was not satisfied that any of the grounds for appeal put forward by the husband had any prospect of success, and he therefore refused the application.
All in all, a clear illustration of the folly of taking your ill-feelings with you to court, and another lesson in the perils of self-representation (many was the time that I had to advise a client against letting their ill-feelings creep into their evidence). Of course, to the non-lawyer looking in, some of the husband’s behaviour in this case may seem just silly, or even amusing, on a juvenile level. But rest assured, it will not be viewed that way by the court.
You can read Mr Justice Mostyn’s full judgment here.
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Author: John Bolch
It is never easy to make the decision to move forward with divorce. For most Texas couples, the step comes after months or years of difficulty, discussions and disagreements. Even if you think you are ready to end your marriage, it can still be beneficial to carefully consider every aspect of your decision.
Divorce will impact every member of your family, your finances and virtually every aspect of your life. If you are not sure that this is the right course of action for you at this time, it is helpful to take the time to think about your options before you move forward. Ending a marriage is a major legal and financial decision, and it is not a choice that a person should take lightly.
Helpful questions as you consider your options
Celebrity divorces that you may see on television or read about in the newspaper are often contentious and lengthy. You may see the headlines about these divorces and wonder if this is the right step for you. Celebrity divorces are often a poor example of what divorce is like for the average couple. In fact, you may be to finalize your divorce without going to court.
As you think about what is ahead for you, it may help to ask yourself the following questions:
It is smart to also consider the emotional impact of divorce. While it can be a challenging process, it may be the right path for you to secure a stable and secure future. One way to make divorce easier is to prepare well for what is ahead, know your rights and keep the best interests of your children as the main priority.
Protecting your future starts now
Divorce will affect your future in various ways, but it is possible to secure a final order that is reasonable and sustainable. Many people getting ready to divorce will find benefit in learning about what to expect from the process and how they can avoid complications as much as possible.
If this is the right choice for you, you do not have to walk through it alone. Before you begin, an assessment of your case and explanation of your options can be helpful. This allows you to make prudent choices and move forward with confidence.
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Author: On behalf of Katie L. Lewis of Katie L. Lewis, P.C. Family Law
The first episode of Stowe guests in 2019 sees us catch-up back again with Claire Black from Claire Black Divorce Coaching.
Going through a divorce and managing life after separation especially over Christmas and New Year can be extremely difficult. This time of year, we often find ourselves reflecting on the previous year and what the new one will bring us. Claire is on the blog today to offer her seven tips for how to handle difficult emotions during and after divorce.
I understand that the emotions you experience during a break up can be overwhelming. I know that during my divorce, I found the roller coaster of emotions exhausting, and small things could easily tip me over the edge. I found my emotions confusing, as they seemed to shift every day, every hour, even minute by minute.
Sometimes I felt afraid, sometimes angry, resentful, lonely, overwhelmed, disappointed, regretful, hurt, shocked, worried, relieved, guilty. The feelings were intense and sometimes contradictory, so it’s no wonder I was confused.
Although there is no “quick fix”, here are 7 ways to help yourself dial down your negative emotions.
Avoid destructive patterns
Some people deal (or rather don’t deal) with the difficult emotions that they feel by stuffing them down, or through drugs or partying and drinking more than normal, or by working long hours, in the hope that the emotions will go away on their own. Others try to blame someone else for their feelings. Sadly, none of these approaches will work long term, and they can become destructive patterns, meaning that you never actually deal with the emotions that you are feeling.
Give yourself permission to feel
Let’s get away from thinking of those emotions as “negative”, implying that they are somehow bad. Your emotions are messengers from your body, letting you know when something is wrong, or hurting, or needs to be examined. Feeling those emotions is part of the process towards healing and recovery. If you don’t feel them, they stay stuck inside and can have a detrimental effect on your health, your stress levels and your ability to heal. So be kind to yourself, listen to your body. Remind yourself that it is OK and normal to cry.
Take each day as it comes and leave each day behind each night. If you’ve had a difficult day, put it behind you – tomorrow is a new day.
Acknowledge your feelings
Notice and name your feelings as they come and go. Simply identifying your feelings will start to diminish their hold over you. Writing down all your negative emotions, fears, worries, concerns and stresses in a journal, or on a big piece of paper may also help as it gets the feelings out of your head and onto paper.
“Journaling is like whispering to oneself and listening at the same time”, Mina Murray, Dracula
Use your physiology to help you
The mind and body are connected, so how you carry your body will affect how you feel. Try this exercise and see what happens.
First, stand or sit as you would when you feel sad or lonely, and notice how your posture makes you feel. Ask yourself how you would like to feel instead: Confident? Strong? Empowered? Happy? Then ask yourself how you would sit or stand differently if you were feeling that positive emotion. Now practice standing in that way. Notice that by changing your body posture, it is possible to feel differently.
Do this when you walk too – look up, take in the horizon rather than looking at the ground, and notice how it influences how you feel.
Shift your focus
Don’t just focus on noticing the difficult emotions – look for times when you feel positive emotions too. What makes you smile or laugh? Smiling and laughing makes your body produce endorphins, the body’s feel-good hormones, so actively seek to do things that you enjoy, and which make you smile. Watch a movie you love, listen to music that uplifts you, sing loudly, take your children out to run on the beach or in the woods, cuddle your pet – whatever works for you.
What you think about and focus on will influence your actions and results. Don’t focus on your ex and his/her new partner, and don’t follow them on social media as this will feed the negative feelings you may have.
Instead, shift your focus on to YOU – what do you enjoy? What do you like to do? Shift your focus from your ex and put your energy into you.
Ask empowering questions and “flip it”
Ask yourself questions that will help to shift your focus by flipping the situation on its head. Ask questions like:
Your answers might be as simple as being able to eat fish fingers for tea (or cook with ginger in my case!), or it might be that you can start planning that holiday that you always dreamt of, but that your ex refused to contemplate. Or perhaps you have learnt that you have some amazing friends and family who have really got your back.
Tell your story differently
How do you tell your story? Do you see yourself as a victim of your divorce? Do you tell your sad story over and over again?
If this is you, then every time you tell the story, you reopen the wounds. Even eleven years on, if I try hard enough I can tell my story in a way that makes me feel sad. You have a choice about how you tell your story, so choose instead to talk about your story in a different way, so that it empowers you and makes you feel strong. What have you learnt? What are you proud of yourself for achieving? Have you done anything new? I remember the first time I mowed the lawn after my ex-husband left. I had been putting it off for weeks, but finally managed it and I felt really proud! To put this into context, this wasn’t a small patch of grass, but a 100 ft stretch of not-very-well-looked-after grass, on a slope – mowing it was no easy feat.
As I always say to clients, it isn’t what happens to you that matters – it’s what you do with what happens to you. These are some of the techniques I used myself when I was getting divorced, so I can vouch that they really do work.
Get in touch
Claire is one of the UK’s first accredited specialist Divorce Coaches, a former lawyer, and Advanced NLP Practitioner. She is based in the Bristol area.
You can get in touch with Claire at www.claireblackcoaching.com or call 07722 007528
The post Stowe guests: Handling difficult emotions during and after divorce appeared first on Stowe Family Law.
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Author: Stowe Family Law
My three top tips for getting through your Divorce Day (and beyond)
Every year at this time family lawyers debate over whether there is, or isn’t, such a thing as ‘Divorce Day’, the busiest day of the year for divorce lawyers, when more people seek a divorce than on any other day. Of course, the debate is academic: if you are seeking a divorce today, then today is Divorce Day for you.
In case there are any readers who have not heard of ‘Divorce Day’ (where have you been?), I suppose I should explain it in a little more detail.
The popular media will tell you that today (or possibly next Monday, the first day of the first full working week of the year) is the day when family lawyers receive more new divorce instructions than on any other day of the year. The idea is that the Christmas break was the final straw for many marriages, with spouses realising, after being forced to spend a less than happy holiday with their other half, that it is time to untie the knot, and make a fresh start in the New Year.
And it is not just the media. Many family lawyers will swear that Divorce Day is a real thing. Many others, however, will be equally adamant that it is nothing more than a media invention, useful for filling a few column inches, or a few minutes of a news programme, in an otherwise quiet news week. The first week in January, they say, does not come with a particular spike in new divorce instructions. They also, I’m sure, feel that the whole idea of ‘Divorce Day’ is somewhat tasteless.
Every year at this time I see family lawyers on social media arguing for one side or the other. I used to partake in the argument itself, but these days I don’t really feel qualified to do so, not having practised now for some nine years, and therefore not being able to comment by reference to my own recent experience.
But if you are one of those who has decided now is the moment to call time on your marriage then it doesn’t matter whether Divorce Day is a real thing or not. This is your Divorce Day, and you are going to have to deal with it.
Of course, divorce is about much more than just initiating the process, scary though that may be. Your Divorce Day is just the beginning.
A lawyer can’t tell you whether or not you should commence divorce proceedings, but they can give you advice to help you get through the process. To strip things down to the bare essentials, here are my top three tips for getting through your Divorce Day, and beyond:
And when it comes to arrangements for the children, always ask yourself: is this really best for them, or is it just best for me? Many parents fall into the trap of thinking that just because they want a particular arrangement, that must be best for their children.
And follow the advice. Obviously, it is pointless paying for advice and then not following it. I’m not saying that you have to do everything your lawyer advises, but there are many clients who think they know best and simply refuse to listen to any advice that is contrary to what they have already decided should happen. Needless to say, that is a recipe for disaster.
And if you do, then it will be so much more likely that you will be able to resolve matters by agreement, rather than having to go through long, costly, and possibly destructive contested court proceedings.
And you should try to settle. Apart from anything else, any party who does not make a reasonable effort to resolve matters by agreement, whether by negotiation, mediation or some other means, will be frowned upon by the court. But it is about more than that, and more than just avoiding contested court proceedings. You are likely to be far happier with a settlement reached by agreement than with one imposed upon you by the court.
If it is Divorce Day for you then I hope these basic tips will help you get through it, and the process that it begins.
The post It doesn’t matter whether ‘Divorce Day’ is a thing or not appeared first on Stowe Family Law.
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Author: John Bolch