Do I need a solicitor for my divorce?

An excerpt from Lawpack's Separation & DIY Divorce Kit.

More and more couples are opting for a quickie divorce and using the DIY divorce route to save money and time. But is a do-it-yourself divorce for you?

To find out if you need a solicitor or if you can manage a DIY divorce ask yourself the following...

Are you sure you have the proper grounds for divorce?

Your rights to a divorce are not automatic. You must show one of the five facts (outlined in our 'Grounds for divorce' article) that prove the legal requirements to get a divorce.

You may need a solicitor to tell you whether you have a ground for divorce.

Is your divorce contested or uncontested?

If you and your spouse both agree that you should divorce, then your divorce will be uncontested. The vast majority of divorces are uncontested, so our Separation & DIY Divorce Kit suits most needs.

But if one spouse is unwilling to divorce, the divorce will be contested by that spouse. In this case, the services of a solicitor will be needed to determine whether there are grounds for divorce.

In an uncontested divorce you don't necessarily need a solicitor unless you disagree on other issues, such as the division of your property or the levels of maintenance payments (properly known as 'periodical payments' in England and Wales and 'periodical allowances' in Scotland) to be paid by one spouse to the other, either for the benefit of your children under 18 or for the receiving spouse, or both.

Do you have minor children?

The most important issues in divorce are those involving the welfare of any child under 18 (under 16 in Scotland), known as 'minor' children. These issues include child support, parental responsibility and divorce orders for residence and contact (formerly known as 'custody' and 'access').

Because these issues are so important, the divorce court will be concerned that what has been decided is in the best interests of the minor children. Because the welfare and proper care of your children are paramount, you should ask a solicitor to approve the divorce agreements concerning your children that you and your spouse have made. An experienced solicitor can guide you to a divorce settlement that the divorce court will approve as being in the best interests of the children.

Do you have property which can be easily divided?

If your divorce consists of nothing more than deciding who gets the dog and the furniture, then you and your spouse can easily resolve these questions on your own without a solicitor. In order to ensure that you have no further financial claims on each other in the future, it will be necessary for you to obtain a financial order to this effect.

In Scotland, if no financial order is made on divorce or in a registered separation agreement, there can be no further financial claims on each other in the future once the divorce decree has been granted and the divorce appeal period has passed.

Do you have substantial assets?

If you own substantial property, you will want to consult a solicitor to make sure that you receive your full entitlement and that the division of property is tax efficient.

Even if the division of your property is likely to be straightforward, you may wish to seek the assistance of a solicitor to ensure that the agreement reached between you and you spouse is recognised by the divorce court as final and not something to be revisited in the future. You do this by setting the terms of your divorce agreement down in a divorce court order which the divorce court will then seal.

More information on this can be found in the Guidance Manual of our Separation & DIY Divorce Kit.

In Scotland, if the financial agreement is in a registered separation agreement, it doesn't need to be recognised by the court or sealed by the court.

Do you or your spouse have connections abroad?

If you're a foreign national or are living abroad, it may be appropriate, or more financially advantageous, for you to be divorced abroad rather than in the UK. If this applies to you, contact a solicitor immediately, as often any delay in issuing proceedings can be damaging to your claims.

Do you need or expect future support from your spouse?

If you expect to be financially dependent upon your spouse after the divorce, you may need a solicitor to help you negotiate periodical payments and to make the obligation binding by means of a divorce court order.

You can do a DIY divorce if:

you and your spouse both want the divorce and agree on the division of property (if there are pension assets that you have agreed to divide, you should consult a solicitor, as they can only be divided after specific court orders have been made - this is a complex area);
you have no minor children;
your assets are not substantial;
you are not disputing maintenance or child support;
you are certain that you have the proper grounds for divorce.

Published on: October 25, 2010