DIVORCE – WHAT WOMAN NEED TO KNOW

WHAT WOMEN NEED TO KNOW WHEN DIVORCE IS CONSIDERED:

• Understand your marriage regime. 

Are you married in or out of community of property?

 

If you are married in community of property, you will be by law entitled to 50% of the communal estate.

 

If you are married out of community with the accrual system, you will be entitled to half of the difference of you and your spouse’s accruals.

 

If you are married out of community of property without the accrual prior to November 1984, you will be able to ask for a redistribution of assets, which can entail that you may be able to claim 50% of the joint assets BUT If you married out of community of property without accrual after 1 November 1984 you will only have a claim for maintenance under certain circumstances.

 

• You can under certain circumstances claim rehabilitative maintenance.

Rehabilitative maintenance is when one spouse pays the other maintenance for a period of time, say 2 years, so that the ex-spouse can to get a job or search for employment.

Rehabilitative maintenance can also be used for setting up house again, relocation costs, etc.

• You can lodge an application pending divorce to obtain maintenance while the divorce is in process, you can also claim in such application that your spouse makes a contribution to your legal expenses.

 

• Obtain a much financial information on your spouse; make copies of all bank accounts, credit card statements and the like as well as a schedule of all assets and liabilities, sources of income, etc.

 

• Draft a detailed budget of your current monthly expenses and income for you and the children. It may be worthwhile to cater for future expenses. Secure the monthly maintenance with a cession of an insurance policy on your ex-spouse’s life in case he is disabled or dies.

 

• Try to stay in the family home (if it is close to the school or your work). There is a saying in our law, that possession is 9 tenths of the law. Remaining in the communal home will also stabilize the children, as it is proven that relocation can be a very traumatic experience for the children.

 

• Remember that you shouldn’t necessarily have to pay transfer duties for a property transferred to you during your divorce.  You may have various options relating to the property that both of you own, for example by retaining it or selling it and divide the net profits.

 

• Your divorce settlement agreement must be drafted in such a way that you can enforce a garnishing order on your ex- spouse’s salary should he default on payments, in any event, non-payment of maintenance after divorce may result in contempt of court application.

 

• Your divorce settlement agreement must be drafted in such a way that you obtain a share of any assets that your spouse has hidden and which you are not aware of at the time of divorce (in event of being married in community of property or pertaining to the accrual system)

 

• Don’t settle for less to get out of the marriage.  Many women simply walk out due to the emotional pressure. Remember that divorce is always a business decision and the decisions that you make now will have an impact only years later in your life. Divorce is a legal process, it can be a very frustrating and emotional draining process that takes time and strategic planning.

 

• Remember that your ex-spouse’s assets also include shareholdings in companies, retirement funds, pension funds and even tax returns.

 

• Think with your head and not your heart.

 

Remember to change your will immediately once you are starting the divorce proceedings.

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Un-opposed versus opposed divorce

Going through a divorce is a very difficult experience for most people. My solid advice is to avoid any individual or firms promising a “cheap divorce” or an “easy divorce. I would suggest that you find yourself an experienced family/divorce lawyer to assist you with an affordable and inexpensive and straightforward divorce that will ensure a smooth dissolution of the marriage.

Unopposed Divorce (also known as un-contested divorce) is divorce by mutual consent where both parties are in mutual agreement and both parties are seeking an uncomplicated and uncontested dissolution of their marriage? If both parties have reached an amicable agreement, a settlement agreement can be drafted and this makes the entire process easy and relatively stress-free for the parties involved.

 

It is a fact that each divorce is unique. In some divorce matters the parties will come to agreement soon (after one or two weeks of negotiating). Other divorces will proceed to a full-blown trial after a lengthy period of trying to negotiate a settlement (although this is extremely rare in my practice as I encourage settlement between the parties by mediating their differences).

 

Mediation is a process in which a mediator facilitates communication between the parties.  Without deciding the issues or imposing a solution on the parties, the mediator enables them to understand each other and reach a mutually agreeable resolution to their dispute. The role of the mediator is quite simple; the mediator acts as a facilitator, not an advocate, judge, jury, counsellor or therapist; but rather assists the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives and helping parties reach voluntary agreements.

Should mediation fail down the line and the parties fail to reach agreement, the divorce process then finally develops into a contested or opposed divorce with severe legal cost implications – it is almost impossible to give an estimate in terms of total cost and expenses pertaining to contested divorces because there are many role players involved and there are many other factors that must be taken into account e.g. pleadings, disbursements like sheriff fees and messengers expenses to name a few.

Should the divorce be an unopposed divorce, the cost will be easier to determine as the process is predictable and there is a set amount of work that will be required. I actually charge an all-inclusive once off fee for an unopposed divorce, which makes life much easier for the client as they are able to budget accordingly and there are no unexpected surprises during the process.

 

The factors that must be taken into account when considering the cost of an opposed divorce are the following:

• The cost of consultations (both in person and telephonic) – your divorce attorney will charge per hour or a pro rata portion thereof for all time spent consulting and advising on your matter.
• The cost of pleadings – all official court documents (pleadings and notices) in a divorce must be drafted by the divorce lawyer and this will also be charged for.
• The cost of correspondence – all emails and letters sent and received by the attorney (both from and to you as well as from and to the opponent) are charged for based on the length and complexity of the correspondence and how long it took your attorney to draft or read the document in question.
• Legal couriers/messengers – the pleadings and notices in a divorce matter must be issued, served and filed to be valid and the cost of the messenger is however still more affordable than if your attorney attended to these duties him/herself.
• Sheriff’s fees – it is a rule that a divorce summons must be served by sheriff and cannot be served by couriers or your attorney. The sheriff charges a fee for this service and the fee will vary based on the status of the service (urgent or standard), whether they have to try more than once to serve the summons, how far they have to travel to serve the summons etc.
• Other hard cost disbursements – this includes but is not limited to printing, telephone calls (mobile and local), text messages, envelopes etc.
• Counsel or advocate’s fees – most divorce specialists (attorneys) will make use of an advocate when the time comes to proceed to trial. The advocate will charge a rate per hour for all court appearances and for any preparatory consultations or briefings that are required.
• Correspondent’s fees – should one or both of the parties to a divorce reside in another province or country, the attorney may have to appoint a correspondent attorney closer to the relevant party to ensure that all processes run smoothly and the required documents and pleadings are served timeously and in the correct manner. The correspondent will charge for all work performed on behalf of your attorney (serving pleadings, accepting service of pleadings, communicating with the client on your behalf etc.)

 

From the above it becomes quite clear that there is a lot more to an opposed divorce than most people believe. There are many role-players involved here and the process can take up to two years to finalize which will obviously also mean that the fees incurred will increase dramatically. It is important to select a divorce attorney who is objective and fair and will secure a favourable result for you without having to proceed all the way to trial.

 

I favour mediation during the divorce proceedings as the process will include at minimum, an opportunity for all parties to be heard, the identification of issues to be resolved, the generation of alternatives for resolution and finally settlement of disputes in order to proceed to court with an unopposed & uncontested divorce.