The divorce process in Ireland is still relatively shrouded in mystery to people who are not involved in the legal process. To the regular person, their understanding of divorce normally comes from Tv and movies which unsurprisingly doesn’t create an accurate picture. To lawyers, the process appears far more mundane most of the time. Bar access and custody of children, it involves primarily a commercial division of the marital assets. I have created this checklist in order to prepare that regular person for the new legal world they are about to inhabit for the next months… years. It will hopefully in a small way bridge the gap between Hollywood and reality.
Are you ready for a divorce?
Ireland is not like Hollywood with drive-thru divorce parlours. It is an extremely serious and one of the most important decisions in a person’s life. We receive a lot of enquiries from people who have had rows with their spouses and “want to know where they stand”. The idea is that depending on the advice received will decide the course of action that they take. No, we do not provide that type of advice. The question is whether you have exhausted all other avenues (i.e. Have you attended couples counseling? Have you decided that you no longer wish to be married?) If you have not decided on this, you do not need to read the rest of the checklist. We encounter an inordinate amount of people who perhaps have made this decision but never move beyond this and initiate legal proceedings.
Are you psychologically ready to begin a divorce?
It is not to be underestimated how difficult and draining the divorce process can be. This is so even in the most non-contentious divorces. Multiply this by 100 where there is a large amount of acrimony and where both spouses continue to reside in the family home. Consider the simple requirements of providing all the information to your solicitor to file your affidavit of means, meeting your barrister and telling your life story, compiling your bank statements, etc, attending a settlement meeting in a courthouse, potentially giving evidence in court, and being cross-examined. This all requires a level of mental fortitude and preparedness that not everyone is prepared for.
Seek psychological support
Divorce coaches have never caught on very much in Ireland so in general people expect to receive this kind of support from their legal advisors. One of the big frustrations and complaints most clients will have with their solicitors is that they are not communicated with enough. While solicitors have a well-earned reputation for not being great in this aspect, one has to understand that solicitors are businesses and cannot charge the client each time they wish to discuss each difficulty encountered in the collapsing marriage. Arguably they could do this work but in general, solicitors’ hourly rate ranges from €250 to €550 per hour so if the client wishes to pay €150,000 for their divorce this would be fine. The answer is to seek the support of friends and relatives and develop a wide support network. They are the people to contact when there is difficulty. If having considered the options together and you need legal advice by all means contact your solicitor. It is also worthwhile exploring attending your own counselor or psychologist to help you develop coping mechanisms and help prepare you for the difficult time ahead.
Understand the financial implications of divorce
In a nutshell, keep the idea in your head that one home is now becoming two homes so necessarily everybody’s standard of living is going to diminish. This is the truth in all bar the mega-rich. If you live in a very expensive property, keep in mind that it may need to be sold so that two more modest homes can be purchased to cater to the needs of both spouses. Understand that when you get into a divorce, primarily it will be an exercise in finances, so understand the family’s finances. If you previously had no idea of the financial circumstances perhaps it would be a good idea to acquaint yourself with them. Think about what pensions you have available to you, what pension your spouse has, how many bank accounts you both have, and what investments you both have. These will all be taken into account when dividing the family pot.
Get an experienced family law solicitor
The question you may ask is, do I need to get a solicitor at all? In my opinion, if you have an asset such as a property or a pension or investments I think that you should get a solicitor. As an example, solicitors who do other areas of work would not do their own divorce as it is an alien area of law to them. There are lots of aspects of your life where you can choose to do the work yourself rather than retain an expert. You can spend your valuable time preparing your own set of accounts for filing with the revenue rather than retain a bookkeeper. You can attempt to renovate your new bathroom rather than pay an expert. In most situations, one ends up creating a bigger mess that costs more money to fix than if one retained the expert in the first place. We get a lot of enquiries that begin with the query, “I have tried a DIY divorce now I don’t know what to do next”. When a solicitor hears this query, they virtually never want to take on the work of fixing this mess. Bottom line, this is one of the most important events in your life, don’t do it on the cheap. Once the decision is made to retain a solicitor, choose a specialist. Solicitors do have a wide knowledge of the law but it is very hard to be an expert in all areas of law in the modern age. So once you have chosen to retain a specialist, there is no harm in having a meeting with different solicitors. Please do not let price be the guiding light. One of the main things to consider would be the airplane test (i.e. Would you be okay with spending a flight sitting next to, and talking to this person for a few hours?)
Remember, you will have to be engaging with this person for the next two years, so it’s helpful to like them. It’s different from other areas of law which are more transactional such as a house purchase or commercial agreement. Family Law requires collaboration between you and your solicitor to create the best result for you.
Should you go to mediation?
Where children are involved, mediation to achieve an agreement around custody and access is essential. It can make the transition to separate lives far easier. Most couples even those with huge acrimony do have their children as their primary focus and mediation can help achieve a mutually agreeable solution. As a solicitor, I have mixed feelings about mediation and do not think it fits every situation. Where there is any form of inequality in the relationship, I feel it is inappropriate. The less dominant partner always benefits from having someone on their side to fight and stand up to the more dominant partner. This is even more so when there is any form of domestic violence, coercive control, or other such behaviours. Remember also that a mediated agreement is not legally binding so no matter what you agree either party can receive legal advice and effectively rip it up. The assets, bank accounts, etc. are not also always vouched ie verified in mediation so effectively people can be signing up to divide up a marital pot of assets without both parties admitting everything that should be in the pot.
Before you go to your solicitor, go to a financial advisor
This may seem odd but in the majority of divorce cases, the question will be can one person buy out the other person’s interest in the family home? You will only know this when you speak to a mortgage broker/financial advisor who will crunch your income and outgoings and give you the good or bad news. Armed with this solid information you will be able to make a realistic plan with your solicitor as to what can and cannot be achieved from your divorce.
Change your email password
This may seem facetious but most solicitors now communicate through email. While there is nothing particularly earth-shattering in your communication with your solicitor, it would be better to keep it private. It is very common for spouses to know each other’s email passwords so simply change it.
If you have a dog, don’t bark yourself You have taken my advice and engaged a specialist family law solicitor and likewise so has your spouse. You are both spending a lot of money on to their advice so let the professionals do their work. You don’t hire a builder to renovate your house and stand over him asking him if they are sure they should use that type of nail, etc.
So do not speak to your soon-to-be ex-spouse about what the solicitors are doing or even worse make suggested proposals to speed the process along. What ends up happening is that there is more animosity as one spouse says the other spouse’s solicitor is holding the matter up or else everyone is in a settlement meeting arguing for a portion of the spouse’s pension (which could be to achieve a higher percentage of ownership of the family home) to be met by the response from the other side that your client told my client yesterday that he/she had no interest in their pension. The bottom line, once you have retained a solicitor never speak to your spouse about the proceedings.
Solicitors are not Amazon Prime
We Irish solicitors are very talented and hard-working undoubtedly but even the best of us still work much the same as we would have in the 19th century. While this is an exaggeration, there is a kernel of truth in this statement. Pretty much all family law solicitors are small practices with a maximum of 5-8 solicitors. We would not have the investment of Google or Amazon to develop best-in-class customer service models. We have a solicitor and a legal executive who does the less demanding legal tasks under the supervision of the solicitor. Each solicitor could look after between 50 to 100 cases. Unlike Google, there are not 100 other solicitors to take on his/her workload when he/she is involved in a long trial or is on holiday. This model is the same model as the nineteenth century. In a similar vein, the courts (even after a brief flirtation with technology during Covid) operate in the same paper-focused, huge time wasted manner as they always have. So we would have acted for highly paid people in top jobs in multinationals and they are baffled that A. We cannot answer every email within 3 hours B. We cannot just get a quick date from the courts, we have to wait 8 months and that is just the way courts operate in Ireland. So, the advice of a divorce lawyer in Ireland would be to simply imagine you are in a time machine back to the 1990s, before mobile phones and the internet, and expect the same interactions from your solicitor as you would back in those times. That would be the best way to retain your sanity.
If at all possible, settle your case
To be clear sometimes your spouse is being unreasonable and you will be advised not to settle your case and this is definitely the correct course of action. You cannot allow yourself to be bullied into accepting less than what you are entitled to. However, the general maxim is that it is better to settle with something that is less than you could get rather than have a judgment imposed upon you by the courts. Family Law cases should only really get very expensive when they are definitely going to be decided by a judge. This means that you have had a settlement meeting without reaching a settlement and you have decided to contest the case. Really listen to your legal advisor’s advice on whether there is a good settlement on the table. Above and beyond avoiding having to give evidence and be cross-examined, there is also a finality and consensus going forward with your spouse that at least you both have agreed to the settlement.