Latest insights from our experts
Divorce FAQ – Part 2
Who pays the legal fees in a divorce?
While negotiating a financial settlement you each use – and are responsible for paying – your own lawyer. As part of the settlement, however, one of you might negotiate that the other should pay part or all of their legal fees.
The position in relation to divorce proceedings are slightly different. A Petitioner is entitled to make a claim for reimbursement of their costs by the Respondent. The costs position is usually agreed between the parties although if it is not, the Court has discretion over whether or not to make a costs order.
You can keep your legal fees down by agreeing as much as possible among yourselves. Fees can mount up if hostile spouses insist on conducting all negotiations through lawyers while arguing over trivial details.
When do we need to agree a financial settlement?
At any time before or after you divorce, although it is advisable to do so before either partner remarries as you may be prevented from making further claims as a result.
It is usually best if you can negotiate a settlement. The court can then be asked to make any relevant financial orders at the same time as the granting of the decree nisi (when the court agrees that grounds for divorce have been proven, however, there is a further delay until the decree absolute finalises the divorce).
Will it make any difference if I move out of the family home before we are divorced?
You will still have the same rights to occupy the home as you had before and can move back in if you choose.
There may be practical problems if, for example, your spouse changes the locks. While you will be entitled to get back in, it makes sense to ensure that you take anything you may need – such as important documents – with you in the first place.
There may also be other considerations and it is advisable to take advice before moving out.
What happens if one of us remarries or starts cohabiting with a new partner?
If you remarry without having reached a financial settlement with your former spouse, you may lose the right to make any financial claim against them. He or she will still have the same right to make a financial claim against you as before.
If you have previously reached a clean break settlement, the remarriage (or cohabitation) will normally have no effect – you have already made a once and for all agreement.
If you are paying your ex-spouse maintenance (this does not include child maintenance), maintenance ceases if the recipient remarries (but not if the recipient merely starts to cohabit).
Either party has the right to apply to vary or discharge a maintenance order, and maintenance orders can be varied upwards or downwards. This can be done by agreement or court order.
If you are receiving maintenance from your ex-spouse, you should normally continue to do so after he or she remarries.