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Subject: fdr waste of time.
Posted By why? on 03-12-2009
hi.
im looking for good strong advise here. previous posts i mentioned that i suspected h was deliberately engineering a third trial because he had told a blatant lie accusing me of saying to him that i would not sttle at fdr and wanted a 3rd trial. i denied it of course because i have not spoken to h in about 10months and is completely untrue. he sent further corresppondence again at aldate about something else and threw in the 'supposed'comment by me that i wanted to go to a 3rd trial and we reminded him that i had denied this. i was of the strong impression that he was going to make sure that the fdr fell through or at least led to a third trial although i could not understand why he would do this or want this other than he often cuts off his nose to spite his face or just wanted me to lose a lot of money on going to a third trial.
h has not provided full disclosure which was ordered by the court at first hearing and many of the questions he completely changed his answer or gave false information which i have mentioned to my solicitor many times. despite writing to him for some of the undisclosed information he seemed to be, in my view, getting away with not providing the information or explaining his change in answers etc and we were getting nowehere with him. my solicitor seemed to be pinning everything on getting the business valuations and hadadvised me that we could not put forward an offer until we had this information which i accepted. however, equally she did not seem overly concerned that he had not provided information asked for by the court.
the information we did manage to get from h was slow in coming forward and long after it was due and with the valuation arriving only 2 hours prior to fdr which was a 54 page and 42 page document so no time to read never mind absorb or understand. it was because of h that the valuation was late in coming also as he was late in preparing the brief and then sent forensic chap information only days prior tofdr which required him to do more work hence the delay.
at the fdr i was told by my barrister that much of what i wanted to tell the judge at the fdr was third trial stuff for example 'he has much more income than he states and this is shown in bank accounts and his expenditure on self indulgence has been huge ie: 6 figure sums in 12 months and can be seen by his credit card statements which also show that he is clearing his payments to these cards comfortably. i was not interested in trying to find out where this money was coming from, i just wanted to show that it existed.
neither my barrister or solicitor mentioned any of the stuff still not disclosed or pointed out that it was because of h that we receieved the valuation so late despite the judge saying it was too late in the day to be getting the valuation hence our negotiations starting from scratch on the day itself. h's barrister mentioned that they had considered adjourning the fdr because we did not have the valuation (i was unaware of this and i dont know if my solicitor was). h's barrister said they decided not to adjourn because court could not see us until april if we did adjourn and that h's counsel obviousldid not want to waste the opportunity to settle at fdr.
all in all it was impossible for us to reach agreement. we were miles apart and there was far too much to consider, for me at least. since it was h who piut financila matters in hands of court i dont know whether it is only they who are allowed to adjourn the fdr but had i known this was possible then i would have suggested this based on h not providing the disclosure asked for by the court. also, i thought that it would be brought up at the fdr that he had not disclosed this information and thathis would have an effect in my favour. i also thought that perhaps the judge would demand that he go away and get the disclosure and answers asked for at the first hearing but my counsel never even raised it.
i am not talking about a little bit of money i am talking about a great deal of money. the result was we did not reach agreement and the judge said it was a pity that we would now be heading to a third trial. so now im assuming that we can no longer ask h to provide the outstanding information and disclosure and of course we have not used the opportunity to get this information through the judge. i was so angry and frustrated. h has been playing dirty from the very beginning and i have tried to prepare my solicitor for the type of person she is dealing with and i am sure there are not many solicitors who have had to deal with this sort of man and i knew it would be difficult for her.
now, having had a couple of days to think things through i realise that it was not that h wanted a third trial but probably just that he knew we just had toturn up to the fdr for it all to fall flat on its face. he knows i cant afford a third trial but equally it will do him no good either, in fact, probably a lot of harm. i dont know if he knew or suspected that my solicitor would attend the fdr without all the information from h and i guess he did know this as i certainly had no reason to believe we would not attend the fdr. on hind sight i now realise that he knew we would attend having not gotten all the disclosure knowing that we could no longer ask for this. we should have adjourned or at least told h we would adjourn in order to get the disclosure and i guess because we never did that he knew he was onto a good thing.
i feel grossly let down by my solicitor because now i have lost my opportunity and in order to get information etc it is going to cost me money. h has not even provided the forensic chap who did the business valuation with all the information he was due to provide which he has attached to the valuation and yet again my counsel did not say a word. we have been told that if we need to ask the forensic chap for information then we each pay our own costs in doing so. this was h's barrister who said this and my people didn't even disagree or bring upo the fact he had still to answer some questions. in fact none of realised this at the time because we only had the valuation a few hours.
now, i am expecting another letter from h stating that just as he expected i did not settle because as i had said before, i wanted to go to a third trial. its predicted. everything i predict turns out to be accurate and despite informing my solicitor all along the way about my predictions somehow she doesn't manage to tackle these issues head on.
there is a lot at stake here. i have been told that a third trial will cost me loads. i think they said in region of £30,000. i dont know if this is an accurate figure or not but the truth is at £30,000 it would be worth it for me if i got a good settlement. i am not even looking for an unreasonable settlement, in fact my offers are very reasonable and on the scale of h's expenditure and supposed income needs, mine are teeny weeny weeny by comparison. what i am not sure about is whether or not i would get a good worthwhile final outcome from a third trial and at those costs my settlement would have to be greatly increased, which by the way, in comparison towhat h has would still be reasonable but im not asking for a huge settlement although i appreciate that by some people it may seem a lot.
all i want is for the mortgage to be paid off in full either immediately or in deferred lump sums. id like maintenance to cover all mine and childrens income needs which are not unreasonable amount. its the mortgage thats causing the problems and in most cases id understand this but not in this case.
im also unsure that my solicitor would be capable of handling a third trial effectively and would not be confident with her. i suspect the reason for my barrister not speaking up is because the barrister probably realised that my solicitor had let me down big time and did not want to get her into trouble. i dont know. now im not sure where to turn. i probably have until april/may until the third trial but to appoint another solicitor at this stage im a bit wary of. also, im not sure what good solicitor could do for me now that its gone past fdr. and then there's the issue of finding a solicitor thats good and strong enough to tackle this. thing is, h has dug a big hole for himself all along the way and we have given him the spade to do that with but now we seem to have given him the ladder to get back out and every time we get him back in that hole we give him another ladder. its so frustrating. i feel i have wasteda lot of time, effort and money and at a real loss now.
should i get a barrister and work closely with him or her instead of a solicitor? money is going down although we still have joint accounts but no doubt h will send a letter stating that it cant be used for legal fees any more or present me with another hurdle. i knew h was like this. i knew he would do what ever he had to do to get what he wants.
that all said. h may be banking on me not being able to afford a third trial and running out of funds etc. but i can get the funds and will if necessary go to a third trial unless i am convinced that i should not by legal folk. however, my solicitor i think for some reason does not seem to appreciate the loss to h if it goes to a third trial and i would want to use this to my advantage by letting him know that i am prepared to do this if we cant settle. i will of course continue to try and settle and if he simply gives me what i am looking for then i will accept and i cant imagine why he wont accept other than he just wants his lifestyle to remain as it always has and in the meantime leave me and children possibly having to rehouse ourselves in smaller accomodation and just get by.
i have no objection to living in a smaller house or just getting by when that is whats available but i deeply resent it when it is available and i know he can easily provide this. i dont know if it can be proved at third trial that it was h who caused this to go to third trial woyuld result in me getting costs paid. somehow i think the judge will simply say it's not h's fault that my solicitor went ahead with the fdr when she knew we did not have full disclosure. i even asked my solicitor by email if he was in breach of court by not providing this stuff and she never answered.
its a real mess. all i can do for now is keep negotiating, and hope that h at least believes i will go to third trial if necessary. then he may settle at 11th hour which is also very much in character for him.
any way. if anyone has any advise id appreciate it. is £30,000 about the sort of sum one would expect for a third trial? or is it likely to be more or less. could h be expected to meet my costs? is there any way of finding an extremely good red hot solicitor thats not scared or too nice to deal with a man such as h. its so annoying because h really is dead easy to trip up because he does it naturally by himself. just needs a strong hand to knock him into place. he acts above the law and sadly gets away with it. should i just work hand in hand with a barrister?
Follow up comments
Added By Simes 2p on 04-12-2009
Why, I won't go into details, because a lot of what you have posted is panic and drivel.
The final hearing happens when insufficient info has been supplied, or if an agreement has not been reached.
Playing brinkmanship with your ex is not a game you should be playing. Let the process run its course and if you change your sol at this stage you need a good slap round the chops to bring you into reality.
One side or the other will probably pay costs, and from the bits I have read, it will be him because he hasn't supplied the right info. Therefore, if your costs came to £250,000, who cares.
What you can do, is to get a Opinion from the Barrister, and/or meet the Barrister to examine all of your concerns. The Barrister will write out a synopsis of the whole situation and advise you of alternative outcomes.
I will say that the majority of stuff you say is irrelevant and mad, but thats not uncommon in divorce.
Added By Kat007 on 04-12-2009
I do agree with simes here,
The other point to think of is that now you are going to a third trial is that your barrister will have time to re-request information he has not supplied it doesn't have to be a judge, although if it was a direction from the first hearing and ordered by the judge that does still stand and he has to supply or he is in contempt of court.
Your barrister can then trawl over said information and the business valuation without rushing so nothing is missed and then she and YOU can sit before the next round and draw up a settlement agreement that will not only be fair to you but also give your STBX the opportunity to say yes or no, if no then keep putting forward suggestions(as this can be done outside the court room) your barrister will help you come to an agreement and then if you can the next court appearance will just be to show the Judge they will say yes it's fair or no it's not go away and have another go. If yes then agreed stamped and ordered. Job done.
I know it's frustrating but don't loose sight of the final outcome. It's not about screwing him over it is about fairness for you both and the kids because that is how the courts view it. They don't want to know the slagging match side of divorce unless include DV etc. They want the facts clear and concise, information and agreement from both parties.
Why? it's scary I know but keep calm he frustrates you I understand and he will continue to do so you have to compartmentalize that side of him and concentrate on the finances. It will get easier I promise chin up. xxxx
Added By sometimesitdoesn'twork on 04-12-2009
The point of the FDR is to try and reach agreement so your legal team were quite correct not to raise "third trial stuff." There is more than one way to skin a cat. If there was any chance of agreement the judge would have set the date for another FDR but, regardless of who said what, this was never likely to be a case where an agreement was reached.
Added By sometimesitdoesn'twork on 04-12-2009
PS the costs of a FH and associated work can be anything from £4k+. It depends on the complexities involved in a particular case. The important thing to take from the the FDR is the opinion of the judge. What did he/she say?
Added By why? on 04-12-2009
no opinion from judge other than that it was a shame we were milesapart and it was toolate in the day to be getting the valuation. she said what was wrong with eachof our proposals and just said that i may have rehouse to smaller house to get what i am looking for. there was no mention or consideration given to the fact that h's income would be and is somehow higher than she had in front of her.
she said that on the face of it h's offer was attractive but understood my concerns that it would be a long time before the mortgage was redeemed and he may miss payments. she said that he should have a house similar in size and value to mine and he would have to be able to fund both households (which he is currently doing and has been for a year). she said we cant treat the liquid and illiquid assets on a par and although we have the business valuation she was concerned who would purchase h's shares if he chose to sell. she said if he were to sell he would have no income and there for sometimes valuations were artificial as you cannot simply divide the figure given and say that is your share. (i dont know why she said this as we did not divide any figure, it was the figure given to us for my share). she acknowledged that it was unreasonable to expect me to produce an income and provide costs of childcare.
she said that in reality h would need to provide a roof for him and us and on the documents available h's income and profits had fallen (despite him somehow affording £100,000+ that we know ofon holand jewellery in last 12 months and purchasing new vehicles for business which are not being used by business but none of this was obviously raised). she felt there for that if mortgage was reduced by lump sum paid by h this would be a better offer. alternatively we may need to consider selling mh and both of us downsizing. (i can bet h will not be downsizing after divorce - gauranteed that he will be in bigger more expensive house which i suspect he already has lined up).
if this was the case after divorce im assuming i just go back to court and point this out?
Added By Owl1 on 05-12-2009
So lots of opinions then from the Judge Why and even some alternatives proffered for you to consider. I'm just not sure you have listened.
Simes puts forward a good suggestion above re an opinion from your Barrister. In fact Simes' first post is very good advice all round and he makes some sound observations which you may want to take on board.
If your ex gets a more expensive bigger house than you post divorce why would you go back to Court to point it out? So what if he has a bigger house than yours?
Like Simes says on the thread above, focus on your own issues.
Added By why? on 05-12-2009
hi owl.
id assume that if the judge says we both need to downsize then thats because there is not the income available to pay for both households. him buying a bigger house would surely prove this was not the case? i suspect he has already put money on a house but he is saying he hasn't. i thought that all the things i was concerned with were my issues, ie: they affect myself and the children?
ps- regarding whether or not i was listening, you are not far wrong. my head was all over the place, i admit that but i got out the papers and realised what the judge had said.
Added By Owl1 on 05-12-2009
No thats not the case Why. At the final hearing the judge will make an assessment of what he/she believes his income to be. Based on that assessment he/she may order the Fmh be sold if their insufficient income for you both to have the same sized house as you have now and you can both be rehoused into something smaller.
However if he then goes on to buy a bigger house than the one you buy then unless you have a need you can't go back and ask for more income to paid to you based on your assumption he must be earing more. Thats because maintenance requirements are assessed on your need and his ability to pay. If your needs are met by a smaller house then you have no basis on which to take him back to Court. His future income is not a bottomless pit that you can keep accessing if you can't show need. Going forward from the Final hearing he could earn squillions instead of just millions but that does not mean you get to benefit from the extra squillions in anyway.
Downsizing may be an option you seriously want to consider particularly if you want to protect your future security and autonomy going forward. If you can downsize into a property that is not subject to a mortgage for example then if his income fluctuates and he seeks to reduce SM on the basis that he can't afford it it won't be quite as threatening as you won't have mortgage payments to factor into your expenditure.
You head being all over the place is not an uncommon thing at a Court hearing. Thats why you engage professionals who are not emotionally involved to decipher it all for you and apply the relevant law.
Added By why? on 05-12-2009
i understand about income not being a bottomless pit owl. i also do not expect to get more if his income goes up after divorce because as far as im concerned that will be money he earns as part of his new life which does not include me.
my concerns about rehousing are not because i dont want to live in a smaller house. its because of the children then possibly having to leave their village, school and friends. its their home and if its not necessary then i certainly dont want to do that. you say its about needs and ability to pay. i undwerstand that too but i have also been told its about standard of living and equality and fairness. all im doing is making sure that is happening.
also, my solicitor tells me hardly any divorces go to third hearing and does not recommend it. she has said this from the very start before she had any disclosure from h so it was not advice based on my case. she says she has only seen one divorce go to 3rd hearing and has put the fear of god into me which is why i have been keen not to go there but i have always accepted if it is necessary then its ecessary. im just hoping its not. that all said, everyone on hear seems pretty calm about the whole third trial stuff, as if its something that happens often. is it?
Added By Owl1 on 06-12-2009
It is about standard of living Why, the general rule is that each party should be left on the same footing. However if you have a house valued at 600k and a 300k mortgage say and the income level of the other party means that they can only meet the repayments on the 300k mortgage but cannot get a mortgage to rehouse themselves, a Court may look to sell the property and split the equity.
On that sort of analysis it may be that given you have young children and can't work they give you all the equity for you to buy a 300k house for you and the children and a much smaller amount of CM/SM as it then only has to cover your living costs on the presumption you will have no mortgage
That frees him up to borrow 300k and be able to meet his mortgage repayments. You are both rehoused. If he then goes out and borrows 500k a Court will not necessarily revist the settlement unless he stops paying the Court ordered CM/SM as your needs have not changed and they have been met.
If they left you in the 600k house and him paying a 300k mortgage on that house plus CM/SM your needs may be met but his will not be.
Why try not to get too alarmed about the Final hearing. Your sol is right, most property deals do not go to Court as a settlement is negotiated and agreed between the parties usually using lawyers but sometimes the parties sort it out on their own.
However in some cases the parties can't reach agreement and then it has to go to Court for resolution. The Court is just a Dispute resolution process when parties can't reach agreement. It sets out a fair process where you each have the opportunity to present your case and be cross-examined by the other side.
Your sol was right in the first instance to advise that the best solution is to try and reach an out of Court settlement as the Court route can be more costly and erode capital. For many going to Court is simply uneconomic, but in your case where there seems to be some equity that may not be the case.
Added By sometimesitdoesn'twork on 06-12-2009
OK, the judge has given lots to think about. Simes is right you need to focus on the important stuff although perhaps hammering it out on the keyboard provides a form of release.
As far as business assets are concerned that was very much in line with what was said on earlier threads. As I said obtaining complete disclosure can be very difficult, time-consuming and costly so it is often necessary to take a judgment on what more information can be ascertained, and at what cost and over what period of time and at what benefit to an improved settlement. If there is evidence of non disclosure at a FH the judge can make 'adverse inferences.'
Although the priority is the welfare of children the courts will not allow them to stay in a house much bigger than required if it leads to an unbalanced settlement.
FHs are not that common. A third hearing is best avoided because neither party has any control and a judge makes a decision how the assets are shared based on the facts before them. The chances are both parties will be left dissatisfied. However, one advantage is at a FH the evidence is scrutinized in more detail than at the FDR.
The aim of a final order is to separate the finances as much as possible and finality. H buying a bigger house after divorce isn't a reason for revisiting the order. When after the divorce new evidence comes to light of non disclosure of assets/fraud owned at the time of the settlement and it makes a substantial difference it is possible to ask for the final order to be set aside.
Added By why? on 06-12-2009
hi
regarding the judges opinion. it was an opinion only based on what she had in front of her and having had no chance to read the experts report or comments. she had a glance at the figures.
regarding the ability to scrutinize in more detail the finances etc. they were not scrutinized at all at the fdr.nobody even mentioned the additional money coming in, expenditureor the fact that he did not disclose 3 of the credit cards ordered by the court. id have thought it was relevant to mention this at the fdr since it was the court that ordered the disclosure at the first hearing. this is what has left me deflated. perhaps if it had been mentiuoned then the judge would have ordered that he do and set a date for a 2nd fdr. mind you, if my people are stillnot going to bring up the excessive expenditure at the 2nd fdr then i cant see how there would be any point.
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