The Pitfalls of DIY Divorce

If your marriage has broken down and you are considering divorce, you may be tempted to try and save time and money by taking a DIY approach.  There is so much information available on the internet, but how do you know if it is accurate and legal?  There are many pitfalls for the inexperienced, and getting it wrong could be a costly and long-lasting mistake.

April 2022 saw the introduction of the no-fault divorce system to try and simplify the divorce process and remove the blame element.  However, the new system is not as straightforward as it might seem.  Read on to understand some of the common pitfalls and find out why using a qualified family solicitor to handle your divorce is the safest option.

A common mistake is that many people still believe that the old decree absolute (now called the “final order”) also severs your financial ties with your partner.  This is not the case – even if your relationship ended amicably or there is no money to divide, you still need to get a financial order to ensure you are protected from future claims against your assets.

The financial discussions can often be more complicated than discussions around the divorce itself and most professional advisers will be happy to assist with either aspect, or both together.

The dividing up of marital assets is a key part of the divorce process and often they are held in unequal shares.  For example, one partner might have worked and earned money for the whole marriage while the other gave up work for a period of time to care for the children.  This can result in very different levels of income, assets and savings between the divorcing couple.

If you are attempting a DIY divorce, are you sure you are aware of your partner’s full financial situation?  Do you know what assets they have and can you be sure you will receive a fair portion of the total marital assets to enable you to move on with your life?  It is often the case that one partner “looks after the finances” in a marriage and it won’t surprise you to know that the other partner doesn’t always get the full story!

A specialist family solicitor knows the right questions to ask and can apply to the courts to compel your partner to disclose their financial situation if it is unclear.  Not understanding this process and getting a one-sided settlement could cost you an awful lot of money and make it harder to make a fresh start.

Are you sure you understand the tax implications following a divorce, especially if matters are delayed?  It is quite common for one party to transfer their interest in the marital home to their ex-spouse, or agree to divide the proceeds of a house sale.  However, this may result in a capital gains tax liability, especially if more than one property is owned.  To avoid unpleasant surprise tax bills, we would recommend seeking professional advice before any transfers of ownership.

If the divorce process takes a while, you may have moved on to another relationship before the last of the paperwork is finalised.  If this sounds familiar, you should be aware that if you re-marry without making a financial order, there could still be potential claims made against you such as pension claims.

Getting divorced doesn’t invalidate your Will, but your ex-spouse is treated as if they had died, removing them as a beneficiary of your estate.  If they were your only named beneficiary then you will be treated as “intestate”, or dying without a Will, and this means that your assets may not go to those you intend.

If you are divorced but haven’t yet divided up your assets (for example your former marital home) then this could mean large sums of money going to the wrong place.  To find out more about what happens when you die without a Will, read our detailed article here.

Another issue arises if your former spouse receives financial support from you (for example child maintenance) and you don’t provide for them in a new Will.  They could then make a claim against your estate for money to continue that support.

A further pitfall comes along if you re-marry, as this will invalidate any old Wills.  If you forget to make a new Will, the majority of your assets will automatically go to your new spouse and children from your first marriage may receive far less than you had intended.

Lasting Powers of Attorney are treated similarly to Wills when you divorce.  Your ex-spouse is treated as if they had died and can no longer be an attorney and help manage your affairs.

It is good practice when making a Lasting Power of Attorney to name more than one attorney in the first place, together with replacement attorneys in case they are unable to act.  Unfortunately we regularly come across cases where there is only one attorney left due to death or illness, and if that one person is your spouse then your Lasting Power of Attorney will no longer be valid if you divorce.  If you don’t make a new Lasting Power of Attorney then if you lose capacity the only option will be a costly and time consuming application to the Court of Protection.  To find out more about the complexity of this process, read our in-depth article here.

You may well find (as clients often tell us) that your partner doesn’t take a divorce application seriously until solicitors are involved.  They may not want to get divorced and hope that you will change your mind, or they may want to delay matters as long as possible to avoid paying a financial settlement.

While using a solicitor doesn’t guarantee good co-operation, the first letter from your solicitor will usually prompt them into action.  With luck they will appoint their own solicitor and the process can proceed in a professional manner.  You won’t need to deal with them directly which can take some of the heat out of the situation and court deadlines and hearing dates can ensure the process is not unreasonably delayed.

We have seen above that a DIY divorce contains many traps for the inexperienced, especially where there are financial assets and children involved.  The easiest way to avoid these pitfalls is to speak to an experienced family law solicitor, and that is where we can help.  We offer a free initial consultation to discuss your situation and go through the options with you.  Our friendly team will answer your questions, so you aren’t relying on internet “experts”.  They will also help you deal with a stressful situation and you won’t risk missing out on a fair settlement to help you move on and make a fresh start.

For further advice on the divorce process and to speak to one of our friendly expert family solicitors, contact us today to book your free 30-minute consultation.

Tel:          01245 893400
Email:     info@backhouse-solicitors.co.uk
Visit:       17 Duke Street, Chelmsford, CM1 1JU
Or send us a message through the Contact Us page on this website.