Divorce: Why getting a “quick” and “cheap” divorce is not always the best option
It is important to note that you cannot “win” or “lose” a divorce case. The main objective should always be to allow the parties to negotiate the terms of the divorce and to let them settle accordingly. Neither party should at any stage of the divorce feel bullied or threatened. Too often spouses are manipulated into cutting attorneys out of the equation as far as possible to save costs. Usually this suggestion is made by the spouse who has something to hide. Don’t fall for this.
There are two legal routes in respect of divorce matters. The contested or the uncontested route. Ideally you should try to follow the uncontested divorce route. A contested divorce matter may take years to finalise, which could drain you financially.
Unfortunately, most divorce matters are loaded with emotions and unresolved feelings which could potentially complicate these matters even further.
Uncontested divorce matters are fast and affordable. However, it is not always the best option to opt for the “quick and cheap” divorce. If you do not know what your rights are you will not know how to enforce it, nor will you realise it when you waive those rights. Once a divorce is granted, it is a final and binding court order.
If there are certain topics that you and your spouse cannot come to an agreement with, chances are that the divorce will be contested. It is sometimes necessary and for the best to contest a divorce matter, and even if you do so, the matter can be turned into an uncontested matter at a later stage when you’ve settled.
Sometimes couples prefer to approach the same attorney to save legal costs. This can be done in uncontested matters. Many attorneys have fixed fees in this regard. However, it is important to note that the attorney is not representing both spouses or necessarily acting in the best interest of both spouses as this would technically result in conflict of interests. In fact, the attorney will be representing the Plaintiff, unless otherwise stated. Therefore, it is advisable to pick your own lawyer to advise you. The cheap and easy way out may seem appealing now, but years later, after everything was said and done, the last thing you’d want to do is look back and wish you knew what you were doing.
If your marriage is heading for a divorce, the best way to ensure that you do not waste anybody’s time and money, especially your own, is to be well prepared before you pick a lawyer.
Pick a Lawyer has prepared the following guidelines to assist with this preparation:
|1.||UNDERSTAND AND COME TO TERMS WITH THE REASONS WHY THE MARRIAGE HAS IRREVOCABLY BROKEN DOWN|
|Why are you getting a divorce? As soon as you have established what the reasons are, it will be easier to proceed with the preparation.
Sometimes couples reconcile while the divorce is on-going. It is not completely uncommon for an attorney to receive a phone call to halt the divorce matter a day before the matter is to be heard at court. Unless otherwise agreed, your attorney will still be entitled to charge for services rendered. It may therefore be a good idea to go for couples counselling, therapy or to have a family meeting about it before you pull the plug. Try not to make any rushed decisions. Divorce is a big step to take and you need to make sure that it is in fact what you want.
It is important to note that, even if you do not want a divorce, the court will most likely grant the divorce if your spouse is adamant about getting a divorce. Your refusal will not be enough to stop the divorce from eventually happening.
Another often misconceived fact to note is that in South Africa it is not a crime to have an affair. Attorneys do not, as it is portrayed in many movies, require evidence of the affair. So best to leave those photographs and printed chat histories in your drawer where it belongs. You can mention it to you attorney and only provide it to your attorney if your attorney requests it.
|2.||UNDERSTAND THE IMPLICATIONS OF YOUR MARITAL REGIME AND YOUR RIGHTS ACCORDINGLY|
|This will be helpful to determine which assets and liabilities belong to you, and which do not. Assets include furniture, immovable property, pension funds, investments, vehicles, and pets. Liabilities include mortgage bonds, personal loans, accounts, and other debt.
You are either married in community of property or out of community of property. If you are married out of community of property the accrual system is either applicable or not applicable.
If you signed a valid Antenuptial Agreement before your wedding day you are married out of community of property and if you did not enter into such an agreement prior to your wedding day- or during the marriage through a High Court Application – you are married in community of property.
If you are married out of community of property, all assets and liabilities you had prior to the marriage, and all assets and liabilities attained during the marriage remain yours, and all your spouse’s assets and liabilities remain your spouse’s assets and liabilities.
If you are married out of community of property with the accrual system, you still have two separate estates, however, the estate that showed the most growth from the date of the marriage to date of the divorce will need to contribute to the estate that showed the least growth during the marriage. Your attorney will assist with these calculations once you have a proper inventory of all the assets.
It is important to note that you can settle on other terms. If, for example, your spouse purchased a vehicle on his/her name, but you were the one who paid the premiums during the marriage, and it is now paid in full, you may negotiate to receive the vehicle even though it is registered to your spouse’s name. If the matter is contested, the court may decide on the matter.
If you are married in community of property, all assets and liabilities of both spouses attained prior to and during the marriage become shared assets and liabilities. You only have one estate and each spouse has a 50% share in the estate. There are exclusions to the rule, one being assets that were inherited and specifically excluded from the joint estate by a will. If you are uncertain about certain assets, make a list of those assets as well.
Spouses married in community of property share one estate, which means that each spouse technically owns 50% of every asset (including a 50% share in each other’s pension fund) and each spouse is 50% liable for each debt. You are already joint owners and you therefore need to settle on different terms if you wish to do so. For example, if you have two vehicles you can propose that you keep the one vehicle and your spouse keeps the other vehicle. Another example is if you own a house, and would like to stay in the house, you can agree that you keep 100% of the house and your spouse receives other assets (preferably of equal value to his/her 50% share in the house) in return. It is not necessary to cut everything in half with a chain saw, even if that does sound appealing at times. If you cannot agree on how to divide the joint estate and the matter becomes contested, the court will most likely order you to sell everything and share the proceeds equally.
|3.||THINK OF THE CHILDREN|
|Come to terms with what you believe will be in the best interest of the children in respect of custody and their primary residence. In most cases it is best not to move the children to new homes and schools as this may disrupt them. Familiarise yourself with co-parenting plans and discuss it with your lawyer.|
|4.||UNDERSTAND YOUR MAINTENANCE NEEDS|
|a.||SPOUSAL MAINTENANCE: If you are financially dependent on your spouse, or if your spouse is financially dependent on you, you need to understand that spousal maintenance can be claimed. You can agree to the amount and the expiration date. If this becomes contested the court may take relevant factors into account before granting such maintenance order, such as the dependent spouse’s actual needs, career, age, health etc. It will save time if you calculate the exact amount that you will need from your spouse or the amount that you will be willing to pay towards spousal maintenance (if any). Start making a list of your own income and expenditure to see how much you will need from your spouse to maintain the lifestyle you have or what you can afford to pay towards spousal maintenance.|
|b.||CHILD MAINTENANCE: Start making a list of all the expenditures related to the children’s housing, food, clothing, education, stationary, Medical aid, other medical expenditure, outdoor activities, sport, entertainment etc.
It always helps to have a figure in mind to work with prior to meeting with an attorney.
|5.||DISCUSSION WITH SPOUSE|
|We know this is not always possible or safe to do, but it will be beneficial to discuss the abovementioned topics with your spouse to understand what you agree to. If there are certain topics that you cannot agree to, chances are you are going to have to start a contested divorce. It is therefore recommended that you try to compromise where possible and to try to resolve most of each other’s concerns.
After following the abovementioned guidelines, pick a lawyer to assist you. Your lawyer will usually provide you with a list of additional documents and information required to enable him/her to proceed with the matter.