Keith Walsh Solicitors

Separation, Divorce and Collaborative Lawyers

 

Separation and Divorce

The facts and misconceptions-

20 Questions and Answers about Separation & Divorce

                  

 

Over the past 10 years while helping people who were seeking separation or divorce advice, I came to realise that there was a lack of factual information available for members of the public. The unfortunate result of this has been misinformation and confusion about the legal process of separating or divorcing.

 

With a view to helping to demystify the subject, I have written this paper which includes the 20 questions most frequently asked by men and women considering separation or divorce. The answers to these questions are here in plain English and reflect the decisions made by the Courts based on Irish Divorce and Separation law and most importantly based on the specific facts of each case.

 

In my experience these are the queries which most frequently arise for clients who are considering separating or divorcing their spouse.

 

Having read our free report you enter discussions with us better prepared and much more knowledgeable, you can and will be advised by us on the all the finer points that are unique to your case. This gives you the opportunity to reach an informed decision about your best course of action at the minimum cost possible.

 

If you can’t find the answer to your question, please feel free to telephone me: 01 455 4723 or email me:  keith@kwsols.ie with your query.

 

I hope you find the question and answer format helpful and would appreciate any feedback you have on my report.

 

Keith Walsh solicitor

8 St. Agnes Road, Crumlin Village, Dublin 12

www.kwsols.ie

Telephone:      01 455 4723

 

I have been separated from my husband for over 20 years, we never signed any papers or went to court. I think I am in the same position as someone who is legally separated, why would I bother getting legally separated at this stage.

 

 

There is a huge difference between being legally separated and just living apart. The main benefit to both of you in getting a legal separation is that if one of you dies then as part of the legal separation it is usual that the surviving spouse would not be entitled to part of the deceased spouse’s estate. However if you are not legally separated or divorced then your husband or wife has a legal right to part of your estate. This right is even greater if you do not make a Will as special rules apply which favour the surviving spouse. Other very important reasons to get a legal separation are:

 

to deal with access and custody of the children and most importantly where they will live and with whom and to assess the level of maintenance.
to make clear who owns what property and to deal with all assets such as savings, shares as well as liabilities such as loans and mortgages.
to protect any assets or property you may buy or receive after the date of separation, these can specifically be dealt with in the legal separation.

 

TIP            - just because an asset (e.g. bank account) or property in the sole name of one spouse it does not mean that the other spouse has no claim on the property or asset. Likewise there is no automatic presumption that all property will be divided on a 50/50 basis, it is up to the Court or you to decide how the assets and debts will be divided.

 

There is no difference between being divorced and being legally separated.

 

If you are divorced you are free to marry again. If you are separated you are still married and cannot remarry.             

 

Why would I bother getting legally separated if I cannot remarry?

 

Divorce is only available if the husband  and wife have lived separate and apart for  4 out of the last 5 years. The Courts have interpreted this as meaning that the couple can live separately and apart under the same roof but the marriage must have been over for at least 4 years.

A legal separation is important as it deals with all the financial issues and means that you can get on with your life relatively soon after your marriage has ended. Otherwise you would have to wait for 4 years after the marriage had ended to get a Divorce.

 

My wife says the marriage is over and wants to separate but I would like to save the marriage.

 

Usually if one person in a marriage decides it is over then it is over. Things to think about are whether you both could go to relationship counselling together or separately or whether it is possible to discuss the problems. There is no point in rushing into a separation until you are sure that the marriage is definitely finished. Marriage breakdown is hugely stressful and it is a good  idea to have someone to talk to during this time whether it is a counsellor or friend or relative.

 

I feel that I behaved badly during the marriage and now I feel guilty and don’t want to look for anything from my husband in the separation

 

Nobody involved in separation or divorce, whether the lawyers or the Judges is interested in punishing people for past misbehaviour. Misbehaviour is only an issue where it is gross misbehaviour which goes beyond arguing, beyond being out late, beyond being a workaholic, even beyond adultery. A normal reaction to the whole separation is to wish to end the process quickly by giving in to the demands of your spouse to give yourself a quiet life. This is a disasterous approach to take in the long term as you will find yourself not properly looked after. Separation should be about finding a reasonable solution to the problem, not about one side bullying the other or about one spouse giving in to all the demands of the other.

 

We are separating, my husband is wrecking my head and annoying the children. How can I get him out of the house?

 

This is the single most frequent question I am asked by family law clients. The answer is not the one you are looking for. If your husband (or wife) refuses to leave the family home and if it is jointly owned or they have any ownership of the house then you cannot force them to leave. The only exception to this is where your spouse has put you or the children in fear and you can then apply for a barring order which is an order of the Court forcing your spouse to leave the house immediately and not return until such time as the Court decides e.g. 1 year. One of the effects of a legal separation is that you cannot continue to live together with your spouse.

The quickest way to get your spouse out of the house is to engage in moving on the legal separation as quickly as possible.

 

Do children always stay with the mother after separation or divorce

 

When the law deals with children it looks at everything from the point of view of what is in the best interests of the children. If that means it is better for the children to live with their dad then this is what happens. In most cases the children will remain with their mother but it is not automatic.

 

My wife wants to get a Divorce but I don’t, can I stop the Divorce happening ?

 

We have a ‘no fault’ system of divorce which means that once your wife proves to the Court that you have been separated for 4 out of the last 5 years then the Divorce will be granted whether you oppose it or not. What you can concentrate are the other parts of the Divorce- what happens to the children, how is the family home divided up, how are the assets shared out, what maintenance should you pay.

 

 

My husband and I have agreed how we are dividing everything up, he says I don’t need a solicitor as we have agreed everything. He has written out a separation agreement and wants me to sign it. 

 

Both you and your husband need to get legal advice. It is good that you can agree the terms with your husband but you need independent legal advice to make sure the separation [or divorce] is fair to you, your husband and your children. No legal separation agreement [or divorce] should be made without full financial disclosure by both sides. Adequate maintenance needs to be agreed for the children. You and the children need to have a secure place to live. If you or your husband has a pension then this may need to be dealt with, unfortunately pensions cannot be dealt with in a separation agreement, any changes to pension schemes need to be made by a Court.

 

I am getting separated [or divorced] – is everything I paid for mine ?

 

No the legal principle behind division of assets in a separation or divorce is proper provision for both parties. This means that the husband, wife and children must be properly provided for after the separation or divorce. It is the job of the parties, the family lawyer or divorce lawyer and/ or the Court to make sure this happens. It means that the Court will decide what money the wife and children need to live on (maintenance) and what their accommodation needs are. The pensions and assets will be divided according to a number of factors. These needs will be balanced by the wife’s earning capacity and the husband’s needs and his earning capacity. Other relevant factors are the length of the marriage, the age of the parties, the age and number of the children. The history of the assets may be relevant – were monies left in a Will or were they earned during the marriage. Did a husband or wife help in the business / What is the health of both spouses like now.

 

Will my family home be sold without my agreement by a Court following a separation or divorce?

 

At the moment, in most cases, the Courts will not force the sale of a family home while the mother and children live there. This is especially true if there is only one home and the children are relatively young. There are exceptions to this practice but generally the Courts and lawyers take the view that the children in particular need a safe and secure environment to live in. If the plan is to sell the family home and there is not enough money left over from the sale to allow the children and mother to be rehoused in suitable accommodation the Court will not sell the house. The Court will say the house has to be sold when the youngest child is no longer dependent and at that stage the net proceeds from the sale of the house will be divided between the husband and wife.

 

My friend has completed a legal separtion [or divorce] and I think he did a lot better than me

 

Every single separation or divorce case is different. Often people who have been through a separation have a particular view of what has happened which may be very different to the situation in your case. The principle of proper provision applies to every case. You can only deal with your own case and while it’s useful to hear other people’s experiences you should concentrate on getting through your separation first.

 

My husband operates a cash business and I don’t think he will be honest about his earnings. I am also worried that he will spend all the savings we have before we go to Court for divorce hearing

 

Solicitors have a duty under the Money Laundering Acts to report to the Gardai and the Revenue Commissioners when they come across incidents of monies where tax has not been paid or where money has been illegally obtained e.g. from the proceeds of crime. Judges in family law cases can also refer a matter to the appropriate authorities. If there is income on which tax has not been paid your husband will be forced to reveal it and to pay tax on it. Any non disclosure of financial information by either side is taken very seriously by the family law courts and will be taken into consideration by the Judge. While he may think hiding his money is a good idea in the short term, in the long term if you know about it then he will be digging a bigger hole for himself.

If you suspect your husband is going to dispose of any assets before you get separated then it is possible to apply to the Court at very short notice to get a ‘freezing order’. This freezing order will freeze all his assets and any joint ones and prevent him selling them before your separation.

 

Do all separations or divorces have to go to Court

 

Most separations or divorces are settled before they get to Court. Even when settled a Divorce has to be double checked by a Judge to make sure that the couple have been living apart for 4 of the past 5 years and that proper provision has been made for them. It is very unusual for a Judge to refuse to grant an agreement which the couple has negotiated unless it is very unfair to one of them. Legal separations can be made by agreement – Deed of Separation (no Court) or by going to Court. Again most legal separations are settled. It is usually only where one of the two spouses is being unreasonable that a case will go to Court for full hearing.

 

I can’t afford to get a solicitor should I just represent myself?

 

If there are any serious issues such as division of the family home, maintenance, access to children it is not a good idea to represent yourself. Free legal aid is available if you are unemployed or on a low income, The government body dealing with free legal aid for separation are the Legal Aid Board www.legalaidboard.ie. . They have a network of solicitors around the country. These solicitors are experienced in family law. Unfortunately there will be a waiting list to be seen by a solicitor but once you are seen your case will then start. If at all possible get a solicitor to represent you as a separation or divorce is important for you, your children and your financial position for the rest of your life.

 

Is my wife entitled to half of everything on separation or divorce ?

 

No. Your wife has no automatic entitlement to 50 % of your assets. The guiding principle is proper provision for you, your wife and the children. This means that all the assets and liabilities (loans and debts) are identified and then based on the needs of both parties they are divided or allocated to one of the spouses. In cases of extreme wealth it is likely the spouse who did not directly contribute to the acquisition or earning of the assets would get much less than 50 % of the value of the total assets. If there is a smaller ‘pot’ of assets then the division will be different.

 

I’ve read about the Paul McCartney divorce in London, is English law for divorce the same as Irish law

 

Divorce cases in England are based on English divorce law which is different to Irish divorce law as we have a written constitution which puts an emphasis on the family unit. English divorce Court decisions while they do not have to be followed here can have persuasive effect. In reality most of the English divorce cases are about hugely wealthy couples while most cases here concern normal people with one or two houses, one mortgage, one or two incomes and pensions, some savings and shares and one, two or three children so they are not always comparable or even helpful.  

 

Is mediation a good way of dealing with a separation or divorce

 

Yes mediation is a good idea provided both you and your spouse enter into it willingly and work constructively to arrive at a solution. At Keith Walsh solicitors we have a list of approved mediators who are experts at reaching a solution to marriage difficulties. As well as engaging with the mediator it is essential that both  you and your spouse get independent legal advice so that any agreement you reach is legally fair and so as to prevent any future problems. We have extensive experience of assisting mediation by providing independent legal advice to husbands and wives who can then have their mediation agreement turned into an amicable separation or divorce.

 

Will the Court force my husband to pay my legal costs of a divorce

 

In 99 out of 100 cases the answer is no. If your husband has caused an increase in the legal costs by hiding monies, not being truthful etc. then a Court may make an order forcing him to pay your costs. If you settle the case it is possible to negotiate a sum which would be paid towards your legal fees.

 

How much are my legal fees going to be for a separation or divorce.

There is no straight answer to this question. If you go to Court you will have to pay for a barrister and a solicitor. The solicitor’s costs will depend on the amount of time spent on your case as well as other factors such as the urgency of the case, the specialist legal issues that come up as well as the amount of financial assets involved. At our first consultation with our client we will give you written details of how much your Separation or Divorce will cost you based on your particular situation. These costs can be paid in a lump sum or by monthly payments. We will always agree our legal costs in advance with our clients and are happy to explain all aspects of our costs at our first consultation and at any later time.

 

I live with my husband and cannot stay in the family home due to his behaviour, he is driving me mad, will I lose out in Court for the divorce or separation if I leave the home. We don’t have any children.

 

Desertion is the legal term where a spouse leaves the other one, it would not apply where there is good reason to leave. This good reason will depend on the case. The Courts when dealing with divorce or separation  in many cases would not penalise you for moving out in circumstances where the marriage is over but every case is different. A reason you may consider staying in the family home is that when you leave there is no pressure on your spouse to sort out the separation  or divorce as he will have the benefit of living in the family home on his own. There is probably no doubt that he is as fed up as you are and if you remain under the same roof then he has an incentive to sort the separation out quickly. Never stay in the family home if there is any danger to you or to any children, seek advice about obtaining a safety or barring order.

 

Thank you for reading this report, I hope you found it useful We are happy to advise you in relation to any aspect of your Separation or Divorce. Please contact us on

 

01 455 4723 or email keith@kwsols.ie

 

Keith Walsh

KEITH WALSH SOLICITORS

 

Disclaimer:

This report is an introduction only and should not be exclusively relied upon. This report cannot be substituted for the advice of an experienced family law solicitor. Each and every case of separation and divorce is different.

 

We have extensive experience in negotiating separation agreements and conducting Separation and Divorce cases effectively at all Court levels up to and including the High Court.
We will ensure that children's rights remain paramount though out any dispute or Court process
We provide the highest standard of legal representation in family law. Keith Walsh is a former Chairman of the Dublin Solicitors Bar Association’s Family Law and Minors Committee and Member of the Family Lawyer’s Association. He has also written on separation and divorce matters for the Law Society’s Gazette and the Dublin Solicitors Bar Association Parchment magazine. Keith is a trained collaborative lawyer and a member of Dublin’s first collaborative lawyers group. He has also tutored on the Law Society’s advanced course (PPC II) in the area of family law and has been invited on a number of occasions to deliver lectures on family law to FLAC (Free Legal Aid Centres).

The firm’s approach is to, wherever possible, resolve family law disputes in an amicable and reasonable manner while ensuring that the rights of our client are properly looked after. In cases where it is not possible to resolve matters in a reasonable or fair manner or where our client is not satisfied with any proposed deal then we will advise you on the best litigation strategy taking into account your wishes as our client, all the surrounding and important issues for you such as what is in the best interests of your children, the matrimonial assets and the income situation for all involved.
 

We understand that every single separation or divorce case is different and that each client needs to explain in detail what they wish to achieve from their case and to be advised by us accordingly.
Our firm is also leading the way by its involvement in collaborative law, a relatively new approach to dealing with marital breakdown which has proved to be more effective than the usual court based way. Collaborative law is an alternative means of dispute resolution which avoids adversarial court cases and is a process where the two spouses and their solicitors work out and deal with all the issues in a cooperative manner and by way of joint meeting. Collaborative law does not work in all cases but we recommend that you consider it as an option to see whether it would suit your situation.
 

Separation and divorce – the most important decisions

We view family law as the most important type of law as the effect of a separation or divorce are life changing events for you. The role of a good family law solicitor is to guide you through the difficult areas of conflict while still ensuring that your rights and needs are properly looked after. As family law results in a division of marital assets we are always conscious of legal costs and will provide you with an initial estimate followed by updated estimates of costs.
Another reason we have developed a thriving family law practice is our approachability – we will always take or return your call, we will make appointments to meet you to discuss important issues as they arise and we will be clear about what we believe is in your best interests and will give you this advice in writing.

We provide the highest standard of legal representation in these areas, which together with divorce and separation are known as the areas of family law. Keith Walsh is a former Chairman of the Dublin Solicitors Bar Association’s Family Law and Minors Committee and Member of the Family Lawyer’s Association. He has also written on separation and divorce matters for the Law Society’s Gazette and the Dublin Solicitors Bar Association Parchment magazine. Keith is a trained collaborative lawyer and a member of Dublin’s first collaborative lawyers group. He has also tutored on the Law Society’s advanced course (PPC II) in the area of family law and has delivered a number of lectures on family law to FLAC (Free Legal Aid Centres)
The firm’s approach is to, wherever possible, resolve family law disputes in an amicable and reasonable manner while ensuring that the rights of our client are properly looked after. In cases where it is not possible to resolve matters in a reasonable or fair manner or where our client is not satisfied with any proposed deal then we will advise you on the best litigation strategy taking into account your wishes as our client, all the surrounding and important issues for you such as what is in the best interests of your children, the situation with your own income and living accomodation and any other important factor

We understand that every single case is different and that each client needs to explain in detail what they wish to achieve from their case and to be advised by us accordingly
 

Our firm is also leading the way by its involvement in collaborative law, a relatively new approach to dealing with marital and relationship breakdown which has proved to be more effective than the usual court based way. Collaborative law is an alternative means of dispute resolution which avoids adversarial court cases and is a process where the two spouses and their solicitors work out and deal with all the issues in a cooperative manner and by way of joint meeting. Collaborative law does not work in all cases but we recommend that you consider it as an option to see whether it would suit your situation.