CO-PARENTING RULES FOR SEPARATED OR DIVORCED PARENTS

Whilst people may become ex-spouses or ex-partners when they separate, they do not become ex-parents. They need to try to become co-parents and get along better than when they were married or when they  lived together.
As parents you share responsibility for your child. You have a duty to talk to each other and make every effort to agree about how you will bring your child up. Even when you separate, this duty continues. You need each other to parent effectively. Co-operation, however difficult, is essential.

Here are some rules to remember:-

1.    Never say negative things about the other parent to the children or in front of the children.

2.    Never let your family, friends or others say negative things about the other parent to the children, or in front of the children. Be alert to the fact that children are sometimes listening to you on the phone and you may not be aware of that.

3.    Do not speak to each other in inflammatory ways either in person, by telephone or by text, and do not “wind” each other up deliberately. Provoking the other parent isn’t helpful. Again, children can be listening even if you’re not aware of this.  It can be useful to imagine your children in the room when you require to communicate with your ex. Some people have said that they have found it helpful to visualise their child’s face in front of them or visualise the child in the room.

4.    Exchange pleasantries in front of the children, no matter how difficult this may be for you, particularly at contact pick up and return times. It can help assure children that it is OK to spend time with both parents and to chat to either parent without upsetting the other.

5.    Never discuss disagreements or conflicts in front of the children.

6.    Agree a strategy or process for constructively discussing any issues which arise.

7.    Improve communication It is in the best interests of the children that you, as parents, can communicate effectively together.  Some suggestions are to set agreed times for communicating with each other, by telephone or in person, and avoid telephoning, texting, emailing etc at other times (unless there is an emergency or a real and genuine issue which requires to be dealt with immediately).  If you are going to meet up to discuss matters, try choosing a neutral venue, without the children being present. Or if that’s not possible, perhaps the parent who has the children during the agreed communication time could initiate the call. If you agree a time, stick to it – although please be mindful that events outwith your former partners control CAN happen! Answering machines, mobile phones, texting and voicemail may be helpful in communicating essential information.  Don’t message constantly though strike a balance.

8.    Share important information (such as medical information and school events) and agree common rules for bedtime, TV, discipline etc for your children. Online calendars to which both parents have access and can enter date and event information can help coordinate the arrangements for the children, and ensure there is less scope for confusion about who should be where and at what time. This can cut down on stress and ensure each party knows when they are shouldering the responsibility of the football run, swimming, gymnastics, parties etc.

9.    Attend events for your children together when possible. You do not have to be best friends, but your child will benefit from seeing his/her parents together behaving civilly to one another.

10.    Respect the other parent’s parenting style, even if this differs from you own.  Accept that if the other parent does things differently from you, this may not be exactly how you would like it done but it may just be “good enough”. Although one parent’s parenting style may be different, both parents should still agree common rules for bedtime, discipline etc as above.

11.    Make your children’s needs more important than your needs (for example, be flexible so as not to interfere with children’s school and social activities) and be willing to give up some of “your” time to make these things happen.

12.    Help your child understand Your child needs to understand what is happening to their family. It is your job as mum or dad to explain. Your child should not be made to blame himself or herself for the breakup. Don’t help your child turn against the other parent because they think that is what you want. You can help your child think about how he or she feels about the breakup. Listen to what your child has to say about how he or she is feeling, and about what he or she thinks of any arrangements that have to be made. Involve your child if they are old enough, but don’t place the burden of decision making on them – that is your job to decide with the other parent.

13.    Respect the other parent’s time with your children. Part of this is to always be on time and five minutes early if possible.  Never leave children on the doorstep.

14.    Any changes in the schedule must be discussed with the other parent first before informing the children.

15.    Do not place children in loyalty conflicts.

16.    Do not quote what children may have said to or about another parent.

17.    Do not accept what children say about the other parent as accurate without checking with the other parent.

18.    Do not let solicitors and courts make decisions about your children that you should make as parents.

19.    Take responsibility for following these rules even if the other parent does not.

20.    Move Forward. Leave the past behind.

CHANGES IN CHARGES FOR CHILDREN

As from 30th June 2014, anyone who makes an application for child support maintenance to the Child Maintenance Service (CMS) has to pay a £20 fee to the Secretary of State, to enable child support calculations to be commenced.  The application fee will be waived if the applicant is under 19 or is a victim of domestic violence or abuse.  For a person to be considered “a victim of domestic violence or abuse” for these purposes, the abuse must have been reported to “an appropriate person” such as a Court, the police, a medical professional, social or educational services, a lawyer or a specialist support organisation including refuge.

Under the Child Support Fees (Regulations) 2014, in addition to the initial £20 application fee, a further “collection charge” will apply to both the paying parent and the receiving payment if the “Collect and Pay” option is used.  In this case, the paying parent will have to pay the assessed maintenance plus an additional 20% collection fee. The receiving parent will also pay a 4% collection fee which is to be deducted from the maintenance amount. So if the assessed maintenance amount is £100 per week, then the paying parent will have to pay £120, but the receiving parent will only get £96 of this. The DWP is effectively charging parents a total of 24%  of assessed child maintenance to use its Child Maintenance Service. According to some figures, the estimated revenue from collection fees may be as high as £1.2 billion over the next ten years.  Initially, the proposed charges were higher but even these charges as introduced will have an impact on low income families with money going to the DWP rather than the children for whom financial assistance is actually intended.

Not everyone will need to pay collection charges: collection fees will not need to be paid if the parties agree and are able to use the “Direct Pay” option (for Child Maintenance Service cases) (or the “Maintenance Direct” option for certain pre-existing claims through the Child Support Agency). This is where the amount of maintenance is calculated, but is not collected. The paying parent makes payment direct to the receiving parent and neither have to pay any collections fees.

If payments are not maintained then the receiving parent can ask the CMS (or CSA) to take action to enforce payment.  With older Child Support Agency cases both parents must agree to use “Maintenance Direct” before it can be set up and there will be no collection fees or enforcement charges if the case moves to the collection service. However, with new applications which must now proceed through the Child Maintenance Service, enforcing payment will mean changing a case to “Collect & Pay” in which case both parents will have to pay collection fees and the paying parent will have to pay enforcement charges as well.

Parents who have existing Child Support cases will shortly receive letters from the Child Maintenance Service advising them their cases will close in six months unless they convert to the new child support system.  Whilst the ethos behind the introduction of the new changes and the new charges is to encourage estranged partners to communicate with each other better (and deal with finances for their children themselves rather than through the Government) it is often exceedingly difficult for separated parents to communicate about even the most routine of matters, such as dates and times for contact, never mind the touchy subject of finances, particularly in the aftermath of what could have been acrimonious relationship breakdown.

 

I Must Make Mention Of Your Pension

I Must Make Mention Of Your Pension

The Chancellor George Osborne made changes to pensions in his recent budget speech. This could affect you if you are separating, or if you are about to.

The new arrangements, which will come into force in April 2015, will give some people greater access to their pensions. There are also some transitional arrangements in place since last week.

Firstly, these arrangements apply to defined contribution pensions, also referred to as money purchase plans. Under these plans the income a person receives at retirement is not pre-determined. It is based on the assets in the individual retirement plan at the time of retiral. Individuals determine which investments their contributions (and perhaps those of an employer) are invested in from a selection of investment options available within the plan.  These are different from defined benefit schemes where the amount of income received at retirement is pre-determined and is usually based on a formula involving the employee’s years of service and earnings. There will therefore be a large number of people in Scotland who will not have the opportunity to participate in the potentially more flexible arrangement referred to below. Those in unfunded pension schemes will remain subject to the current regulations affecting all pensions.  This of course may well change in the future, perhaps even by the time the legislation is finalised as there is now a consultation period.

Mr Osborne said that from April next year, people over aged 55 will be able to access their entire pension pot. The existing provision for a 25% tax free lump sum stays, and in addition, there will be scope to withdraw the other 75% – but subject to the pensioner paying their usual rate of income tax on any balance taken (either zero, twenty, forty or forty five per cent). Pensioners will no longer be forced into buying an annuity, although can if they want. For full details go to HM Treasury website at https://www.gov.uk/government/organisations/hm-treasury. It should of course also be borne in mind that when the legislation is actually passed, the final effect may not be as currently anticipated in the recent Budget announcement. Sometimes a watered down result may be what is delivered at the end of the day following consultation. Time will tell.

So for separating or divorcing couples these proposed changes mean that pensions need no longer be looked at solely from the point of view of an income stream in later years, and can now be looked at as a fairly realisable and relatively liquid asset (depending on how old you are). A pension may well be the second biggest asset in a divorce or separation, second to the matrimonial home. It might even be the biggest asset depending on the length of service of the employee (if it is a contributory scheme), the duration of the marriage and obviously, the level of contribution. The importance of the existence of a pension therefore cannot be underestimated when a couple decides to separate. Often the pension value will be offset against the value of the matrimonial home but where this is not favoured, or is perhaps not possible, these new budget changes may do away with necessity for a pension sharing order at all. Instead of perhaps being forced down the route of pension sharing on divorce, there may now be scope to withdraw lump sums from certain pension pots and transfer this money in settlement to a spouse instead. This provides more options for separating couples dealing with their finances if having to consider splitting capital assets. This greater flexibility might generate even better financial solutions for individuals and their families. That must be a good thing.

But what does more scope to be even more creative in relation to financial planning for separating couples mean in practice? We are not authorised by the Law Society to provide financial advice but we have close links with a number of excellent independent financial advisers who are qualified to help with this. An example is shown below of what this may mean in practice for some.

Clearly, anyone who has still to resolve their joint finances following separation should pay particular regard to these proposed legislative changes, and even more so if they are approaching the age of 55. Pensions can be complicated and specialist advice should be sought. Not only do you need robust advice from specialist family lawyers (like all our lawyers here at MTM Specialist Family Lawyers), but you need a good financial expert too. A joint meeting can be really useful to explain all of the options available to you to allow you to make the decision that works best for you.

EXAMPLE

Lets take 2 entirely fictitious clients, Jane and Steven Collins. Both are over the age of 55 and they are both currently working.  Steven earns £100,000 per year whereas Jane, who has only worked part time since having the children some years ago, earns £25,000 per year. They have decided to separate. Both want to act collaboratively and maximise income for the family. Steven chooses to invest the maximum amount into a new pension arrangement, which from April 2014 is £40,000 a year. But as a higher rate tax payer, this is only going to cost him £24,000 in real terms as he enjoys higher rate tax relief – 40% x £40,000 = £16,000 tax relief.  If in the context of a divorce, a pension sharing order is granted in Jane’s favour for 100% of Steven’s new pension, then Jane can effectively access this entire pension pot and use her own tax allowances. She would be able to take the first 25% tax free (£10,000). If she took more than this in the first year then this would push her into the higher tax bracket and she would pay 40% rather than 20%.  If she took the remaining £30,000 equally over two tax years, the tax paid would stay at 20% (£3000 per year, totalling £6,000) and she would have in her hand another £24,000. Jane would therefore withdraw a total of £34,000 over two tax years but this effectively has only cost Steven £24,000.  It has cost Steven £24,000 to give Jane £34,000 cash. Another way to look at it if maximisation of family income was not the main priority is to say it has cost Steven £24,000 to give Jane a pension sharing order of £40,000 on divorce.

 

 

 

 

Where Scotland leads is England following?

So, is the English legal system actually looking to the Scottish system for inspiration in divorce law reform?

There have been a number of reports in the media recently about the English Law Commission’s  four  year review of “nuptial” agreements and divorce pay outs.

Of course pre-nuptial and post-nuptial agreements have always been binding under Scots Law provided they are essentially fair. There is a long standing history in Scotland of couples regulating their financial affairs after separation by use of registered separation agreements, and pre-nups and cohabitation agreements  are also proving more popular.

The English courts have however not always felt bound by such agreements and can ignore or modify  them in family cases. It is now proposed that divorcing couples in England could set their own terms in a pre-nuptial agreement or decide on division of their assets in a legally recognised post nuptial agreement. The Commission goes further and recommends that divorced spouses should no longer expect financial support for life from their ex . Typically the support should not be paid for any longer than ten years after divorce or until the children reach secondary school age.

The Scottish divorce system has however been curtailing payments for continuing support of an ex-spouse since 1986, and awards of support for life are now very rare and generally the maximum an ex-spouse can expect is three years after divorce. The English Law Commission is now laying  emphasis on achieving financial independence for both partners, mirroring the clean break principle in Scots divorce law.

While the wider debate about Scottish independence is hotting up towards the September referendum, it’s worth remembering that Scotland already has a very different, independent  and unique legal system in this area of law.

Some clients I have spoken with recently have been unaware how different our divorce law is to England and on more than one occasion I’ve had to point out that in Scotland, unlike England, you can’t expect to get divorced first and sort out the finances later. Hopefully a potential disaster averted! But how many residents of Scotland know that when they read the press reports which tend to report on English cases or reform proposals?

Even with the proposed reforms there will still be scope for argument. What may be reasonable for one couple might not be for another. That is where the skills of a family lawyer will still be required. And so it has proven already in Scotland for nearly thirty years.

As specialist family lawyers, we at MTM can steer clients through the complexities of pre-nuptial and separation agreements as well as a host of other family law issues.

Putting “The Spark” Into Your Relationship

Putting “The Spark” Into Your Relationship

Relationships. They’re great. Well, most of the time! Ok, most of the time when the going is good. But they can also be really hard work sometimes! Having just come back from the launch of “The Spark” it made me realise that no one actually tells you how difficult a relationship can be. Not just a relationship with a partner or spouse, but all sorts of relationships can have their ups and downs – relationships with parents, siblings, colleagues, and employers to name just a few. (Luckily I have lovely colleagues and bosses and as they check the content of my blog before it goes online I feel I better be clear about that!) And its not just me who thinks that you need to work at a relationship: a huge number of people are calling the Relationship Helpline (tel 0808 802 2088) for different sorts of advice in all sorts of relationships.

When “The Spark” first started out as Scottish Marriage Care in 1965 they provided marriage guidance only. But times have changed. Now, “The Spark” offers telephone support and online counselling so that regardless of geography, people all over Scotland can access counselling services. Services cover every stage in relationships from the first flush of romance through to support for new parents, coping with teenagers, all the way through to relationships in later years. Help is available for those in heterosexual or same-sex relationships. You can get additional information online at www.thespark.org.uk. They are the relationship experts.

Should you consider seeking relationship support before deciding to separate or divorce? It won’t be appropriate in all cases, but it could help. Some people I’m sure will find the word “counselling” off-putting. Maybe if you know someone who would simply benefit from a chat about what’s going on in their life, it might be more appealing for them to think of it in that way. I’m not on commission from BT but “it’s good to talk”! Actually, whilst it is good to talk, you don’t even need to speak to anyone face to face – you can just pick up the phone or simply go online in your lunchbreak or when the kids are in bed.

Hopefully “The Spark” might help. Its worth a shot if it’s appropriate in your case. But if not, and you need specialist family law advice for a separation or divorce, or contact issues with children, or aliment or maintenance or any other family law matter, get in touch with us at MTM Family Law instead. We’re not the relationship experts but we are experts in family law.

A Christmas Crisis?

I love Christmas! The smell of newly fallen snow. Sparkly fairy lights everywhere. Carol singing on my doorstep. Children playing and laughing. Friends and family over for drinks and helping themselves to the plentiful, most delicious homemade fayre laid out beautifully on my table which has been lovingly decorated by angels sprinkling angel dust as they go……..

Ok, ok, that is how I often imagine Christmas! But in reality I don’t think I’ve ever had a Christmas like that – ever! Newly fallen snow means I can’t get the car out the drive, I’m late for wherever I have to be, I’m cranky and the kids are moaning as snow has got in their boots and made their tights wet. Children are usually squabbling over the remote control or which game to play next or who has eaten the last chocolate decoration from the tree without asking. My delicious homemade spread is quite possibly a selection of party offers from Iceland (or the local petrol station) and the angel dust is really just dust as I’ve not had time to clean the house as I’ve been too busy shopping, buying presents, writing Christmas cards and ferrying kids to social event after social event whilst at the same time trying to keep on top of homework, housework and an ironing mountain rivalling the size of Ben Nevis!

So is it any wonder that Christmas is one of the most stressful times of the year for couples where even the strongest of relationships can experience difficulties? If you add in overspending on Christmas presents, general financial strain, unrealistic expectations of the perfect Christmas and bad weather, not to mention over indulgence in food and alcohol then Christmas may not be so merry for some couples after all. That doesn’t even include the slaving in the kitchen whilst others chillax with a sherry or two (or 3,4,5,6,7…..), the lack of time for each other as you’re too busy or just exhausted – and probably best not to mention the arrival of the in-laws!

But, if after all the excitement (or stress) of the day is over, you still feel that there is more substance to the arguments than just Christmas, you may decide to turn your attention to legal advice in the New Year. Statistically, more couples separate in January than any other time of the year. Its really important to get good quality advice from specialist family lawyers if you are thinking of separating, or even if you just want to find out what your options are in the event that your marriage or cohabitation ultimately does go down the separation route. That’s where we come in. Get clear and concise advice before you rush into anything. You might want to consider relationship advice or counselling first. You might think mediation or collaborative law would be the best option for you, and then there’s arbitration to consider too. More information on the possible methods to resolve your family issues can be found on theRIGHTKINDOFDIVORCE.com.

Hopefully you won’t need our services, but if you do, we’re back after the holidays from Friday 3rd January 2014 at 10am. Despite the above, Christmas for many is a wonderful time of the year and from all the staff at MTM Family Law Specialists Glasgow, Merry Christmas and best wishes for 2014.

Cheap divorce in Glasgow?

A friend at the school gates the other day asked me “Where can I get a cheap divorce in Glasgow?”.  The other mum within earshot replied “Surely that is a contradiction in terms?!”  In actual fact sometimes it is, sometimes it isn’t………it all depends on circumstances.  It also seems to me to be dangerous to start out making price your only criteria.  I am thinking of getting laser eye surgery (too many years of head stuck in the law books!), but I wouldn’t let someone near my eyes on the basis that they were the cheapest.  I would want to know their reputation, how many successful procedures they had carried out, whether their indemnity insurance was up to date and so on.  In my view so should it be when getting a divorce.  You might be lucky; your circumstances might be such that you can use the simplified procedure (do it yourself divorce), only cost the court fees and about £50 to have a notary swear the contents of your form.  On the other hand you might find that there are complicated issues in your case, sometimes ones which you don’t even recognise.  You might have inherited money that you spent on an extension to your house.  You might be employed in your husband’s business.  You might have owned property prior to marriage.  If such issues (or many more) arise you might want to be in the hands of the equivalent of the best laser eye surgeon, rather than the cheapest.  So my answer to the question, “Give me a call and I can talk it through with you and put you on to the best path for you, which might even be the cheapest.”  I am always available to have such a chat, whether I know you or not!

Arbitration for family law – YES!

Shona Templeton in our firm is one of only 29 lawyers in Scotland accredited as an Arbitrator in Scotland. She is a member of the FLAGS organisation (Family Law Arbitration Group Scotland). Details are on the website at www.flagscotland.com.  Shona was recently asked to speak at a conference to other solicitors about the usefulness of arbitration in family law.  It is somewhat bizarre that this method of resolving disputes has not been adopted by family lawyers.  There are however clear advantages for arbitration over other forms of dispute resolution and in particular litigation which has financial and emotional cost.

Arbitration is a method of resolving disputes that does not require parties going to court.  The arbitration process is flexible and can resolve full issues surrounding separation and divorce or indeed is appropriate to address single issues, which are causing a negotiation to falter., for example, disputes over the date of separation or disputes over the value of matrimonial property.  The benefits of arbitration are that it is an adversarial, yet inquisitorial process that has many advantages to a client.  In particular, it is quicker and operates to a fixed time table that is set by the parties and the arbitrator. This means that the process is not open ended and subject to a court time table.

  • The process is confidential which can be a significant benefit to clients of high net worth, who do not wish their business interests to be discussed in open court.
  • The process may be cheaper as the arbitrator will work with the parties to determine what is the appropriate method for the process and can focus the parties to provide relevant information to the issues in dispute.
  • The arbitrator has considerable discretion to tailor the process to the nature of the particular dispute.
  • All of the arbitrators are trained or experienced family lawyers and accredited specialists.  They are experts in their field and can be chosen to address particular disputes that the parties need to address.

Shona is happy to discuss with all of her clients the use of arbitration as a method of resolving disputes and is also able to sit as an arbitrator to resolve the disputes of other parties.

Our new arrival!

I want to welcome the new addition to our team. We are most fortunate to have Caroline Henderson join us from the family team at Maclay Murray & Spens.  Caroline is an experienced family lawyer who has specialised in this field for many years.  She is accredited by the Law Society as a specialist in her field and is trained in both collaborative practice and mediation.  Her skills  sit very well with the objectives and aims that we have of providing a specialist, rounded service to our clients.  Welcome to the team Caroline.

Love is lovelier…

..the second time around? We have noticed an increase in the amount of couples entering into a second marriage or relationship who seem clued up enough to look at getting a pre-nuptial agreement or cohabitation agreement before embarking on this new phase in their lives.
Romantic? Probably not. Necessary? In a number of cases, certainly advisable. Costly? Not compared to the cost down the line of possible litigation, quite apart from the emotional cost in the event of separation.
Many couples, particularly “Baby Boomers” who have been previously married/civilly partnered or widowed and who have assets they wish to protect – such as business interests earmarked for children of the first relationship, family trust funds or perhaps wealth built up before meeting the new partner – may wish to ensure that these are “ring fenced”. Quite often both partners , if of a certain age, will wish to ensure their wealth (or that inherited from a deceased partner) will pass to their children or other family members in preference to their new partner, who may in turn have their own assets they wish to protect.
Of course in many instances it can sometimes just be bitter experience of divorce or separation which ensures that a client will look for this added protection. Once bitten…??!
If there is any doubt about the best course of action it’s best to consult a family law solicitor sooner rather than later. At MTM we are well placed to offer this specialist service and hopefully make the transition just a little easier.