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Reaching a Financial Agreement – A Checklist

by Sally Clarke, Family Mediators Association board Secretary

Checklist following separation – steps to take when you need to work out a financial settlement.

1. Arrange an appointment with a family mediator for a MIAMS appointment.

This is an initial appointment to discuss options with a family mediator following separation.

You may then need to deal with the following:-

  •  How to achieve a physical separation – who will remain in the property pending a financial settlement being reached;
  • What contributions do you each need to make towards the mortgage; bills and payments towards any children;
  • If you have pension provision then contact your pension company and request the Cash Equivalent Transfer Value for your scheme. Some providers take weeks to release that information so it is better to make an early request;
  • Start collating bank statements, details of any assets, income and liabilities and anything else which is relevant to your situation;
  • If you have properties / businesses then these will need to be valued;
  • It may be that you need a financial contribution from the other party, or if you are the main earner it may be that one will be sought from you;
  • If the family home is not in your name you may wish to register a Homes Rights Notice against the property to protect your interest the property until a settlement is reached;
  • If the family home is owned by the two of you as Joint Tenants then you may wish to consider severing the tenancy to protect your 50% interest on death.

2. On the basis that you and the other party each attend an assessment appointment and are willing to mediate and the mediator assesses your situation to be suitable then you will be invited to attend a joint session.

Your family mediator will provide with you a list of documentation that yourself and the other party need to collate. Such documentation is then exchanged so that you each have a clear picture of your financial circumstances. 

3. The role of the mediator is to ensure that you are happy with the disclosure which has been provided, ensure that you are happy with any valuations which have been carried out and to help you discuss settlement options. 

After the first joint mediation session you may choose to take legal advice from a family solicitor who can provide you with specific advice as to your situation. 

4. Providing that an agreement has been reached then you can steps to have this document made legally binding through the Family Court. Your family mediator will explain how to do this. 

“It’s just so lovely to see my parents smile again and I’m sure they think the same about us kids.”

Written by Sian www.voicesinthemiddle.org.uk

For the 7 years leading up to the divorce, I knew things weren’t quite right between my Mum and Dad. Honestly, they really tried to make it work for the three of us kids. The late night chats they used to have to try and sort the issues out and being the eldest of us, I was always more aware of when there was tension. I think ideally they wanted to wait until we’d all finished high school so we didn’t get disrupted as much but the only thing was that ‘waiting for the right time’ caused more arguments, frustration and strain. When I was in my last two years of high school I started having counselling and I remember one day having a bad anxiety attack and just ran out of school. I couldn’t cope with people being loud and shouting and I found it hard in a classroom full of people.

I remember Mum hugging me saying she had no idea how I felt and that she loved me so much. She told me about possibly splitting up with Dad and I was surprised at how the words came out of my mouth ‘I just want you both to be happy.’ I’ll always remember the tears running down her face and I told her that if they did split up then we’d be okay. It’s not as if their love for us kids would change. They’d still be our mum and dad but just happier apart. And I learnt from a young age that they did love each other and care for each other, it just wasn’t enough to make it work. The strains of working and daily life then coming home and cleaning up and money issues didn’t help. Mum just didn’t stop to sit down and relax with us in the evenings.

When they eventually did decide enough was enough, I was in my first year of college. Some of the family thought they should have tried harder to sort it out but that’s unfair, no one knew what was really going on. Loads of people asked me what I thought about it all and honestly I’d say every time that I just wanted them to be happy.

It was messy for a while and things did get a bit awkward. Things were said that shouldn’t have been said. A lot of stupid things that shouldn’t have happened but we’re all on the other side of that now. In a much sunnier place. As the days go by I think we all feel better and my anxieties have more or less disappeared.

Some days I have to tell myself to relax and I’ll listen to some music to wind down. Mum always said she knows what it’s like not having her Dad around so felt guilty but she makes the effort to drive us round to see our Dad. They chat to each other about what’s going on. They’ve both got new partners now and I think they’re both great. I get on really well with them because they bring smiles back to Mum and Dad’s faces. I don’t feel like I’m missing out, I feel like I’ve gained a lot, almost as if it’s always been this way. It’s just so lovely to see my parents smile again and I’m sure they think the same about us kids. They only ever wanted us to be happy too.

Improving handovers for children of separated parents

By Ashley Palmer and Leigh Moriaty, the Handover Book

In 2017 we published the UK’s first ever Handover Book which is a communication tool for separated parents. The book was conceived in the context of our relationship with many separated families who were searching for a resource that enabled them to reduce parental conflict, improve communication and create a more robust co-parenting relationship post separation.

This article aims to provide an explanation of why the book was created in the context of our many years’ experience of working therapeutically with children and families.

Since it’s delivery to the world of family law, the book has been gaining momentum both in the UK and Australia. It is fast being recognised as an invaluable tool in the context of Family Mediation, Court ordered parenting programmes and across the field of Alternative Dispute Resolution.

In the UK, the Handover Book is now court ordered for separated parents involved in court proceedings and is recommended by Court Consultants in their Section 7 reports.

As a Systemic Family Psychotherapist, Mediator and consultant for Collaborative Law, I have for many years immersed myself in the world of working with families presenting with a myriad of difficulties and dilemmas in many contexts. My curiosity has grown over time in relation to how best to support clients through the transition of separation and divorce. How to assist parents with being able to navigate their own journeys of separating whilst centralizing the emotional and physical needs of their children.

Conflict is a normal and inevitable part of family life. However, the inability to resolve conflict and move forward in a constructive way can have a negative impact on parents and children’s psychological well-being both in the short term and over time. Wittgenstein (1958) suggests that if mediation is deemed a success then parties involved know how to ‘go on’.

Reflecting on my work with separated parent’s positions me to consider some of the common dilemmas presented in the context of my work.

Entrenched stories of conflict, blame and hostility towards one another. Winslade and Monk (2000) suggest that for those of us working with separated parents our goal is to contribute to building a story of a relationship that is incompatible with the continuing dominance of the conflict and that we need to open the space for people to make discursive shifts.

When this can be achieved, we create new future possibilities for enabling parents to be able to mentalize about their child’s emotional fragility and to consider what needs to be different in relation to facilitating a smooth transition between homes post-separation.

Whilst consulting with children in the context of this work, I have heard all too often a dominant narrative of experience which is punctuated by episodes in which a child feels painfully positioned between waring parents. A sense of divided loyalty, blame and a responsibility for passing and filtering information from one parent to another. In its extreme these children will resist contact with one parent and align themselves with the other because the turmoil is too great to bear. Sadly, the unresolved parental conflict will often lead to long and protracted court proceedings and the presentation of emotional difficulties for the child in the future.

Research over the last decade has provided deeper insight into not only the outcomes for children of exposure to destructive conflict but also how children are affected and why some children appear more vulnerable or resilient than others. Research has also focussed on how family relationship patterns are passed from one generation to the next. One explanation is that conflict between parents disturbs other relationships within the family such as between a parent and child. (Grych and Fincham, 2001). There is also evidence to suggest that a family environment marked by destructive conflict affects normal developmental processes, such as brain development, which in turn affect children’s emotional, behavioural and social development. Goozen et al, 2007)

An integral part of my work with separated parents is to support parents to understand the importance of their own emotional regulation in order that they hold in mind the positive effect that this will have on their child’s emotional development by increasing their child’s sense of security and belonging. In turn, this will enable them to accept and trust in the attachment relationship.

A child transitioning between both homes may experience a parent presenting as highly anxious before and after contact with the other parent because the parents are conflicted and distrustful of one another. This may be verbalized or covertly communicated through action. Often, in my experience children of highly conflicted separated parents are highly attuned to the subtle messages of concern that parents display.

When a child feels unable to talk about their experience of contact in either home this can also exacerbate parental anxiety. A vital component to children feeling able to have the emotional permission to have a close and loving relationship with both parents is their ability to express their feelings and emotions without fear of upsetting a parent or contributing to the already conflicted parental relationship. This process is often referred to as emotional literacy which is the ability to recognise, understand, manage and appropriately express emotions. Children who are able to do this are often more able to initiate a helpful response from others and develop strategies for coping and building resilience.

In my experience, it becomes essential for children of separated parents to be able to develop these skills. Sometimes as part of the therapeutic work this is about supporting and developing one or both parent’s ability to do this with their child. If a child is only able to achieve this with one parent they will feel the need to ‘hold it together’ for the duration of the contact with that parent but on returning to the other parent whereby they feel emotionally contained their presentation is often one of ‘emotional dysregulation’ which in turn raises that parents anxiety about their time in the care of the other parent.

Arising from our work with separated families, the issues of concern highlighted in this article are common, regardless of the context in which parents are engaging in a service to resolve issues arising from the separation. Whether that be mediation, collaborative law, parenting programmes or therapy. What appeared to be evident was that armed with a plethora of information about the need to develop a workable co-parenting relationship which centralized the needs of the children, parents were often unsure as to how to implement this approach.

The Handover Book creates the opportunity for children to see their parents working co-operatively and diminishes children feeling a sense of divided loyalty. Furthermore, it increases their ability to develop their emotional permission to have a loving relationship with both parents.

The book which is passed from one parent to another aims to reduce conflict and improve communication post-separation.

It is designed for separated parents but it will also be a fantastic resource for any professional working with separated parents who believe in a constructive and non-confrontational approach to Family Law. It centralizes the practical and emotional needs of the child and the completion of the book creates the development of a robust co-parenting plan. The book is divided into sections relating to all areas of a child’s life which parents need to be involved in such as contact arrangements, education and health.

Because this is a book which should be shared with all family members, there is also a children’s section in order for their voice to be heard. Through the correct use of the book, children are encouraged to talk positively about their experiences in both homes which in turn will enable them to have the ’emotional permission’ to have a positive relationship with both parents. We have also included some therapeutic tools for parents in order to support and encourage them to talk to their children about how they are feeling.

In the UK, a number of family law professionals have undergone training to deliver Handover Book sessions for parents wanting to get the most out of the book. We are in the process of developing an on-line training programme for our colleagues in Australia in order to equip them with the skills needed for delivering these sessions with parents alongside FDRS already currently offered.

The aim of the Handover Book session is for an experienced practitioner to guide parents through the process of implementing The Handover Book which is a working tool which if used correctly will improve parental communication, reduce conflict and create a robust co-parenting relationship post-separation.

At the Handover Book session, the practitioner will navigate parents through each section of the book in relation to what information needs to be shared as well as the practicalities of using the book so that their children can transition from one home to the other as smoothly as possible thus reducing the likelihood of fraught and stressful handovers.

The Handover Book is in its infancy. In light of this, to date research is qualitative. Feedback from professionals working in the arena of Family Law has been extremely positive. For professionals working with parents involved in on-going court proceedings, the book is being used as an evidenced based assessment tool for ascertaining parent’s commitment to working cooperatively in developing a co-parenting relationship. Court ordered parenting programmes are integrating the book as part of the course programme to give parents a workable tool to implement their knowledge gained on the course. When used as part of the mediation process, completion of the book forms the basis for a robust co-parenting plan.

But let’s bring it back to what this book is really about!!

On-going conflict and hostility can have a profound effect on children’s emotional wellbeing and shape the formation of their relationships for years to come. The ability for children to transition smoothly between both homes, talk openly about their experiences to both parents and be confident in the knowledge that having a close and loving relationship with both parents post separation is integral to their development.

Whilst in principle parents understand the importance of shielding their children from conflict and hostility, in reality this can be a struggle. Quite often, parents can be blaming of each other, fearful of losing their relationship with their child or resentful about the breakdown of their relationship. This conflict is played out post separation through the use of destructive communication, exposing the children to explosive handovers or positioning the children to pass information from one parent to another. In its extreme, parents can alienate their children from the other parent exacerbating the child’s sense of divided loyalty and inability to feel that they have the emotional permission to have a close and loving relationship with both parents.

It is our hope that The Handover Book will assist professionals to support separated parents to strengthen their parental alliance and in doing so develop a co-parenting relationship for the future.

For further information and to place an order visit:
www.thehandoverbook.co.uk 

Financial issues and mediation

by Sally Clarke, Family Mediators Association board Secretary

Financial issues can often lead to worry and very difficult conversations following separation. Very often in a relationship one party deals with all financial issues and the other party may be left feeling very vulnerable and quite frankly scared at the thought of sorting out financial issues.

The process of mediation can assist both parties to understand their financial situation and with the assistance of the mediator a settlement can be negotiated.

However finances associated with the breakdown of a relationship/marriage are resolved there is an important two stage process:-

  • The exchange of financial documentation ;
  • Negotiating an outcome

 How does this work in the mediation setting?

The first stage of the mediation process, i.e the MIAMS stage involves the mediator meeting each party separately and discussing with each party what issues they would like to resolve. Providing that mediation is assessed to be a suitable process and both parties are willing to attend then each party is provided with a mediation financial disclosure booklet. The mediator will typically go through the mediation booklet during the first session of mediation, discuss what information/documentation is required and agree with each party what they need to provide/bring with them to the second session.

The process of financial disclosure is an important one. The reason being is that each party needs to be in a position to make informed decisions regarding their financial situation and future. Financial disclosure exchanged within the mediation setting is what is known as “open disclosure”. This means that the disclosure can be shown to each party’s solicitor and if the mediation process was to unfortunately break down then that documentation can be provided to the Court. This is to encourage parties to be open and transparent.

It may be the case that certain information is not available straight away and needs to be requested or third parties need to be appointed to obtain that information. Keys aspects of financial disclosure may include the following:-

  • Valuation of the family home and/or any other properties
  • Pension information known as the Cash Equivalent Transfer Value may need to be obtained
  • If there is a business involved then key information may be required such as company accounts/letter from the company’s accountant
  • Information relating to income for example P60 and wage slips or if one party is self – employed then tax returns may need to be provided
  • Income needs – the mediator will provide each party with a form to complete so that each party can work out what they need to live on each month, for example

An example of when a third party needs to be involved may be the appointment of an expert to provide input upon how pensions should be valued or shared, or it may be that an expert is appointed to value property such as the family home, or to value one party’s interest in a business or other asset.

How does the mediator help parties negotiate a financial settlement?

Once the financial disclosure has been obtained then the mediator will take copies of each party’s disclosure and provide each party with a copy of the other party’s disclosure. When both parties and the mediator are happy with the disclosure provided then discussions can begin as to what a financial settlement might look like.

The role of the mediator is to collate information and facilitate discussions. The mediator can provide legal information from an impartial point of view but cannot provide either party with legal advice. That is the role of each party’s solicitor. The mediator will suggest to the parties that legal advice is obtained in between mediation sessions. Each session will typically be a few weeks apart to provide the parties time to consider options, take advice and reflect upon discussions which have taken place within the mediation setting.

Negotiating a financial settlement is a bit like putting a jigsaw puzzle together. There are different aspects which inter-relate. Once the financial disclosure has been obtained then the mediator will typically draw up an agreed schedule of assets which is essentially a summary of the disclosure provided. The mediator then uses this to help the parties look at options.

The starting point is typically that each party needs a home for themselves and crucially any minor dependant children. The mediator works with the parties to look at how that can be funded from available resources i.e capital and by looking at what capacity, each party has to borrow monies for instance by way of a mortgage to help fund that. There is then the issue of what income each party has and how that can be used to meet their respective needs. Other factors may include looking at what debts/liabilities each party has and how they should be met and then looking at other matters such as pension provision and whether that should be shared or off-set in some way. It is the role of the mediator to help each party understand what is there and to help facilitate discussions relating to how assets/income/pension provision should be treated to help both parties reach a financial settlement which meets each party’s needs.

Financial mediation tends to take place over a number of sessions and in between each session there is the option for each party to take independent legal advice.

How is an agreement reached in mediation made legal?

Once the parties have hopefully reached an agreement in mediation then the mediator draws up two documents. One is the “open financial statement”. This is an open summary of the financial disclosure provided by each party. The other is the “memorandum of understanding”. This second document contains a confidential summary of proposals reached. The mediator will send both documents out to the parties at the end of the mediation process and once each party is happy with the contents then they are signed by the mediator and the parties. Once in a signed form then either the parties take the documentation to their respective solicitors, who convert the documentation into a legally binding form called a “consent order” which is submitted to Court for the Court to make a binding order as part of the divorce process. Alternatively it is up to the parties to what is called “waive privilege” on the documentation and submit it to the Court, if neither party has legal representation.