How to choose a divorce lawyer and what happens next

Tamsin Caine talks to family lawyer Gianna Lisiecki. They discuss how to choose a lawyer, what you can expect from the first meeting and the onward process. They also cover how best to prepare for meeting with your lawyer.

Gianna joined O’Donnell Solicitors in 2020. She previously worked in at a city centre firm in Manchester, having trained in Leeds. She has expertise in all family related issues including divorce, ancillary relief, cohabitation and complex children disputes, including abduction.

She guides her clients through their legal issues with understanding, giving them clear and straightforward advice. Her clients feel at ease with her compassionate, constructive and conciliatory approach and she is not afraid to be firm when required.

Gianna is a trained mediator and is passionate about mediation, which is an important element of her work. She firmly believes that mediation is a holistic alternative to the traditional approach that gives clients the opportunity to explore a mutually beneficial resolution of their issues while ensuring that an agreement can be reached swiftly, amicably and with dignity.

She was recently described by a client as “an absolute credit and asset to your firm”

Another said, “your support has helped me to reach the conclusion with my dignity and my mind intact…”

Gianna can be contacted on 01457 761883 or by emailing gianna@odonnellsolicitors.co.uk.

Transcript

Hello and welcome to the Smart Divorce podcast. This podcast is for you if you're thinking of separating, already separated or going through divorce. My name is Tamsin Caine, and I'm a chartered financial planner. We'll speak to some fantastic specialists who can help you to get through your divorce, hopefully amicably and start your new chapter positively. Now, over to today's guest.

Tamsin

Hello and welcome to the Smart Divorce Podcast. I'm delighted to be joined today by Gianna Lisiecki. Gianna is the director at O'Donnell Solicitors in Oldham. She's previously worked at the number of city centre law firms in Manchester and has many years experience in family law. Gianna, Welcome!

Gianna    Hello.

Tamsin

So we're going to talk today about using the traditional family lawyer route to go about sorting out your divorce. So perhaps let's start at the beginning. What's the best way to go about choosing your lawyer?

Gianna

I think it's always best if you go down the recommendation route so try to speak people that people that you know may have been down the process and ask them who they used. I think another key thing to do is lots of research. Um, you know, it's always worth if a solicitor is offering a free 30 minutes, having a meeting with th em to see if you feel comfortable with that solicitor or picking up the phone and trying to ring a few, see if you feel like you were a good fit for them. There's also directories like Legal 500 and Chambers and the most solicitors also have good websites with lots of information there about themselves and they tend to include blogs of articles, have a read of them. They may also do Twitter. Just see if that particular solicitor fits with you and how you feel about things,  if feel you can work with them. You know there is nothing wrong with going to more than one solicitor and many of us actually  now expect that.

Tamsin

It's a good idea to make sure that you get on with your solicitor because you're gonna have to work with them for some time, aren't you?

Gianna

Yeah, absolutely. And if court proceedings prove necessary, it can be 12 to 18 months, sometimes longer. So you don't want to be in a situation where you don't feel comfortable with your own solicitor, don't have confidence in them. They are two things to make sure you feel okay with early on because of the time frames.

Tamsin

That's good advice. So if the client's coming to see you for the first time, how can they better prepare for a meeting with you?

Gianna

There's no actual necessity for any preparation whatsoever. It's good if they have some knowledge of the financial situation because that means you can get the best out of the meeting. But it's not the be all and end all, information can be given by them having just a rough idea at that early stage, and some general advice can be given, if not specific advice, depends on how much that person knows.

Tamsin

Okay, because it's not unusual for one of the couple to have the financial experience and look after all the money and the other one to have no idea about what's what. So it doesn't matter if they don't know where they stand financially, they should still come and see you?

Gianna

Absolutely, yeah, no, it doesn't matter what's where, and we still live in an age where one person generally takes control of finances. It's not always the man. It's not always the woman, there's know set person actually. It's just the way that things are so it doesn't matter what's where. If yo you want to do some research then, you know, just bring your  bank statements in if you've got mortgage arrangement statement, all that kind of information's helpful. But as I say, it's not necessary for first meeting. But the information will be needed down the line.

Tamsin

Okay, what can a client coming to see you expect will happen in the first meeting. How does it usually go?

Gianna

I generally start up my first meeting with a bit of a fact-find, so I'm trying to get some basic information about the client like what we've spoken about. It's also to give them some advice because what I want clients to do is leave, having felt that they've had really informative meeting and then they know where they're heading with this and they know the different options available to them. So for me, it's about finding out about them and their situation, to give them some advice and give them all the information about the situation in terms of options. And then also information about costs, and then they can then go away and decide how they want to proceed. But they're doing that having had the information to know what's best for them.

Tamsin

So they won't leave your office with all the answers. But you should be able to put their mind at rest a little bit about the process. Is that fair to say?

Gianna

Absolutely. Yeah, yeah. I mean, you generally don't know all the answers until there's been a disclosure process, but certainly you can come to a first meeting and get a good idea of how the divorce process works, a good idea of how the financial process works and some advice about what kind of financial settlement they'd be looking at a upon divorce. It may not be as I say specific, but it could be general, depends on the information they can give about themselves and their spouse.

Tamsin

Okay, and after the first meeting, let's assume that they thought you were fabulous like we do and they wanted to move forward. What happens next?

Gianna

I generally send a retainer letter after first meeting, which sets out how I work and about costs. I also would send a letter of advice or a file note of the meeting. So they've got in writing what's being discussed and what the advice is. And it will set out generally how the divorce works, the different options available for divorce and how finance is working, the different options dealing with finances. When they then get that letter, they sign it, send ID documentation back, and I will generally ask them to confirm how they wish to proceed. So from then it could be we start divorce and we will know the based upon which we are starting it. I want to know which route we're going down with finances, whether it's a voluntary financial exchange or whether we proceed straight into court proceedings. And obviously that is if they've decided against other options available, such as mediation, collaboration, at that stage.

Tamsin

Okay, so talk me through when you might go for a voluntary exchange for information and when you might go straight to court proceedings or not.

Gianna

So voluntary exchange is where you are trying to go about it generally amicably and you have some confidence let’s say that the other person is going to be sensible about the situation. So that’s when you generally would go down the route of voluntary exchange and what happens is as a solicitor at an early stage you would write to the spouse’s solicitor or the spouse if they are acting in person and suggest a date when certain financial information is going to be exchanged. They then come back and say whether they agree with the date or not.Then what happens is we collate or I collate financial information for my client, get it all together. And then I send it in the post or via email on that particular day. On that same day, I should receive their spouse's documentation, and at that point, we can then see if we've got everything  to basically advise the client, as to what their financial settlement would be. If not, then it could be that we have to raise a question there asking for additional information and when it's court proceedings, what you sometimes find is: if you are not receiving all the documentation you'd expect in a voluntary exchange that would be the time to go down the court route, if not before. People tend to get on the court route when perhaps they need maintenance right away or the other side is hostile and they know that it's very unlikely they're going to reach an agreement. Or they have tried all  the methods of dealing with matters, which just not worked. If you go down the court route, you are ordered to exchange financial disclosure by waiver form A, which is a detailed document in which looks for information and lots of supporting documentation about your financial situation.

Tamsin

And is that document, sometimes used for voluntary exchange as well?

Gianna

Yeah, solicitors deal with it in different ways. Some solicitors like to use a Form E with the supporting documents and some solicitors just want you to produce a list of documents. Um, and the documents tend to be those that support Form E; say  produce a list and the supporting  documents and exchange those. So in terms of what encompasses: you're looking at a mortgage redemption statement. If you have any evaluations you would include those, 12 months worth of bank statements, you do also include any kind of policies, which you've got have value like life insurance policies. Any liabilities you may have, you may include credit card statements, etc, cash equipment transfer values, the pensions, if you're employed, three months worth of pay slips, a P60, a P11D. If you're in a company: two years worth of accounts. So it is quite a substantial list of documentation to be exchanged and that's basically what would happen. You would collate those documents, then send them to your spouce's solicitor.

Tamsin

But you're only sending the information that relates to you, aren't you? You are not expected to collect any information or you're not supposed to collect any information from your / of your spouse's information, are you? It's just your own.

Gianna

Yeah, it 's just your own information or any joint asset information. Because some people think the other spouse will provide the information, they don't always do. It's always worth you provide your joint information as well as your own information. It doesn't matter that you don't know about the other person's finances. In detail, they should disclose their financial situation. And, yeah, there are very strict rules about taking documentation belonging to a spouse, so be careful about doing that, and that's a situation where you definitely will need to speak to a solicitor.

Tamsin

Okay, on what about if you suspect that your spouse isn't going to be honest about the information that they provide about the finances.

Gianna

That's generally the situation where I would say it could be worth you going down the court route because you'd end up with the weight of the court behind you and request information. And in terms of the request of the information that generally occurs after an extended Form G. So you raise a question there, setting out what other information and documentation you require us to have the full picture about your spouse's situation. And if you're  going down in  court route, at that first hearing, a judge would consider what questions you'd wish to raise to ensure that they are reasonable and proportionate.

Tamsin

Okay, and  what happens? Let's go back to the voluntary exchange. So you received the information from the spouse's solicitor on the same day as they received the information from you. What happens after that information is exchanged?

Gianna

If all the financial information is there, so you know into the necessity of drafting questionnaires. That's the stage where you can start giving your client specific advice about financial settlement. So upon divorce, you have financial claims per capital, income and pensions so you can tell your client what they can expect to, a walk away with on the basis of those claims at that stage. Or you can tell them whether or not if an offer has come forward, whether that should be accepted by them. And if that's in the range, that you'd expect a court to order, all the advice that I give it and all the solicitors should give is on the basis of what a court would order in their situation.

Tamsin

Okay, but it's not an exact science, is it? Working out how how finances should be split? So how do you help with with sorting those out, with deciding what happens?

Gianna

No, it is not. It is about much of the individual's situation, so it depends on which factors you apply. And so, for example, on a capital claim, starting point is 50:50 and you then look at what Court Section 25 factors to support a move away from that basis. Those factors include duration of marriage, earning capacity, borrowing capacity. The factor, which actually most hear about if the situation is one where the parties haven't got particularly lot of assets, in most cases will be decided on the basis of need. And that's a consideration of what the person needs. A practical sort of consideration of housing, a borrowing capacity and on those kinds of things. So it's about the matter as a solicitor apply your knowledge and our experience to an individual's cases to work out what kind of settlement would be achieved on their individual circumstances. So you're looking at the whole picture in terms of their assets and situation and reading them.

Tamsin

So you talked about borrowing capacity, so is it important for clients to take some advice from, for example, a mortgage adviser to see what they could borrow?

Gianna

Absolutely, yeah, if the situation is one, where it's looking like they'll have to purchase a property.  because the matrimonial home, let's say, is gonna have to be sold, that it is worthwhile to take some advice from a mortgage advisor. And actually advice from an IFA generally about the financial situation so that they have a clear idea of how best to achieve a kind of settlement as well that they wish to achieve. There is an  advance, getting advice from professional like yourself. There's.. ultimately the solicitors are there to give legal advice and not financial advice. But we, of course, do tell people what kind of settlement and they're looking to achieve and then send them to the appropriate expert.

Tamsin

Yeah, that's that's really good. I mean, we've worked together a couple of times and I know clients I've worked with and they get an offer and  they don't... if they've never dealt with finances before, they don't necessarily understand what that means to them in the whole picture, of their future life style. So we've certainly helped a number of people on that.

Gianna

Yeah,  it comes back to what we were saying before about this, we've still get situations where one spouse takes charge of the finances is so it can be a really daunting experience... If you've never dealt with finances to suddenly be told what your financial situation's gonna be like, you just don't know how to handle it. And that's why it's so important people seek you by.

Tamsin

No, absolutely, totally agree with that. Okay, So often I think the traditional lawyer route is sometimes misrepresented and people think well, it'll automatically be a bum fight and end up in court and cost tens of thousands pounds. But it can work with clients to resolve things amicably through this route, can't they?

Gianna

Absolutely yeah. That's why it's important you're careful about choosing which solicitor you go for. Certainly sensible solicitors will try and make sure that you do try doing matters amicably. And voluntary disclosure shouldn't be seen as a hostile step anyway. And it shouldn't be seen as hostile going to a solicitor. Ultimately, they are there to help you. You have a duty to act in the best interest of the client. And so that means that they're giving you all the options, not the option, which means that you spend the  most amount of money, which you know, is the reputation some solicitors have. Um, and in terms of dealing with the amicably, solicitors will give you tips on how to deal with the divorce Nissa in a way that keeps the hostilities down and also has a side with matters financially in a voluntary bases is an amicable way of dealing with that. Naturally, it can be a quicker way of dealing with it because you get a set procedure put in place by a solicitor in the same way you do with a court timetable; but obviously with the voluntary disclosure route you haven't got necessarily the certainty that you could have reached an agreement which with court route you are.

Tamsin

Yeah. No, definitely. So we've talked a lot about finances and how you'd go about dealing with those. The other massive fear that clients have when they first separate from their spouses is what the arrangements will be for the children, I think. And it seems to be a lot of fear around. Will my children be taken away from me? Will I not be able to see them anymore? You know that somebody will insist on certain arrangements being made. How do you go about helping divorcing or separating couples to sort that out?

Gianna

Yeah. I think what most people should be aware of is that the courts aren't going to become involved in dealing with any issue regarding their children unless an application has been made or unless things to been taken out of their hand  for example, by social services or the police getting involved. So in most cases, issues regarding the children are left to them to agree and the courts encourage agreement when it comes to children because they won't want you going down the court route. They want you to try and resolve matters between yourselves, because that's what's best for your children. Of course, the court do recognise that that doesn't always work out and sometimes court proceedings are necessary. So if a client comes to me explaining what I've just explained, I'll also tell them how we'd go about resolving it, either voluntarily again or through the courts. We could be - if a person tells their situation - we could make some recommendations and proposal letter be sent to their spouse or their cohabitee, ex-cohabitee. And putting forward maybe some arrangements and seeing if they're acceptable or raising any issues. If matters can be resolved in that way, it  could be that we then go to mediation or through the courts. You have to go to an MIAM as part of going through the courts unless there's an exception that applies. And if parents do have to go through the courts, the court are always looking to try and see if they can agree. What's important to the courts and what they consider first and foremost is the child's welfare. Because that's a paramount consideration to the courts . So it's all basically about doing what's best for the children and at court, the first hearing you meet with what's called a cafcass officer and they are basically an independent organisation looking at what's in the best interests of the children. What they do is to also try and help you reach an agreement. So the process is all geared to try and help parents as opposed to a court in conflict, even if it does end up in court.

Tamsin

It's got to be met more straight forward for the future, if you can avoid a conflict at this stage, hasn't it? You mentioned a MIAM appointment during that - what exactly is a MIAM appointment?

Gianna

MIAM is what they call the mediation information assessment meeting. So they've all changed several years ago so that in order to proceed through the courts you had to have - whether this is for children or finances - you had to have the application, a part of the application signed off by mediator, so the court made it, the part of the application for you to go to a mediator, for what they call a MIAM. That's basically meeting where a mediator assessing whether your case is suitable for mediation, then depended on what happens at that meeting, on the day, they then may invite the other side to attend to try mediate or they might simply sign off the relevant section of your application to allow you to proceed to the courts.

Tamsin

All right. Okay. Thank you for clarifying that. Is there anything else that we should be talking about this morning?

Gianna

I think the main thing to take away from this is that solicitors are not to be feared. A lot of people come through the door who are nervous because they have not been through that situation before. The solicitor should be there to help you, to give you advice, and that you know, where you are going with it all. It's important that you do take advice because you get one shot at sorting these things out. When it comes to finances that is. And you are best doing that on a fully informed basis, rather than having a situation where you may be struggling to deal with it yourself, and it all goes pear shaped and then seek a solicitor. Because there are many situations that I've been told about or have advised upon where people have done it for themselves and it has gone unfortunately very wrong.

Tamsin

Yeah. No, that's really good advice. I can definitely vouch for the fact that certainly the family lawyers I know are definitely not scary at all. And very approachable. You're not scary at all Gianna. That's brilliant. Thank you so much for joining me this morning. I really enjoyed that!

Gianna

Thank you!

Tamsin

Thank you for listening to the Smart Divorce Podcast! If you'd like details of our guest today or of myself so you can get in touch, please check out the programme notes.. Many thanks. See you again soon!