Managing the long-term financial and emotional consequences of decisions: YRes perspective on the Code in action
Divorce and separation represent a significant life transition, often accompanied by complex financial and emotional hurdles. As practitioners our role extends beyond the technical; we are instrumental in guiding clients through turbulent waters, ensuring they understand and manage the potential long-term consequences of their decisions. However, this can be a real challenge at the start of your career, when you are building your experience. Even now I cannot tell a client, with complete certainty, the outcome of their case or what their future holds.
As a trainee solicitor I was drawn to family law as I felt that I could make a real difference in a client’s life. It was a stark change to being a paralegal in insurance litigation, where most cases were a drop in the ocean for clients. I saw how my colleagues, through years of experience, were able to turn an anxious client in floods of tears into someone who would leave their meetings feeling reassured, with a plan of action. I was so determined to become like my colleagues, but I became complacent. Whilst I strove to be sympathetic and responsive to client needs, I became a postbox for all of their gripes against their ex-partners. On one occasion, my opposing solicitor and I sighed that we had law degrees but had to advise our clients to wash their children’s clothes before handovers (a genuine point of contention). On other occasions, I have seen clients fight against paying certain outgoings, fighting over furniture or the number of minutes for a FaceTime call with their child. The legal fees outweighed the actual issues in dispute, but in the moment it felt important to the client and so it was important to me. The issue is that by acting this way, it was not always in their best interests. It was a learning curve trying to balance what was most important to the client in the moment and what would help them in the future. That meant teaching clients how to let go of certain things, which often felt like a great injustice.
Throughout my career I have learned some tips which have helped me to better support my clients to understand the financial and emotional impact of their decisions.
Understanding the risks
Now more than ever junior lawyers should be looking to steer their clients away from court proceedings and towards out-of-court dispute resolution options. If they don’t know the options, then Resolution’s “staircase of opportunities” is a good place to start. The National Young Resolution Committee and Dispute Resolution Committee have also recorded a podcast about the various training options on Resolution’s “In Conversation with…”, which is free to listen to on Spotify.
Clients need to understand that the rules have changed and there is a far greater risk to them in not engaging out of court. Even before the FPR changes we were hearing this in cases such as OG v AG [2020] EWFC 52 (Mostyn J: “if you do not negotiate reasonably you will be penalised in costs”) and HO v TL [2023] EWFC 216 (Peel J: “the court’s function is not to pick over the bones of the marriage and attribute moral blame”). These cases are important reminders of the court’s power to order costs based on conduct, even if it impinges on needs. Whether it is failure to provide disclosure, failure to reasonably negotiate, or even pursuing an argument that is bound to fail, junior lawyers should not be afraid to remind clients of these risks.
Communication is key
All junior family practitioners would benefit from attending the “Essential Skills” module with Resolution. One of the simplest learning points on the module is the importance of communication. Instead of focusing on the issues that resulted in a stalemate or engaged the fight/flight response, reframe the situation. A simple example: instead of everyone fighting over the family home, say instead “I am hearing that you need a home. Let’s talk about how we could achieve that.” It was such an easy way to change the mood and direction of conversations with clients, from something negative and confrontational to something hopeful and future-focused.
The recent guidance from the Family Justice Council on neurodiversity is also an essential read. A client’s particular focus on a certain issue or inability to process information could be as a result of being neurodiverse. Taking the time to understand how your clients prefer to communicate will make the experience much more manageable for you and your client. Companies such as Communicourt can provide additional support to clients in helping them to process and fully understand information, both in and out of court.
Build a team
I am lucky to have such a supportive family team at Thrings, as well as being able to ask other teams for advice on other areas of law. Building your team is not just about your co-workers around you, but the people you recommend to your clients when they need advice outside your expertise. It is all too easy to feel pressure as a junior lawyer that you must know it all. What I’ve learned is that the most successful lawyers are not afraid of asking for help. Whether it be barristers, counsellors or financial advisers, through speaking to people and instructing them on cases over time I have built my own network of trusted advisers who I can now go to at the drop of a hat. That took time and going to events and speaking to anyone and everyone, but it will happen if you nurture that skill. Most people want to be helpful and want to see you and your clients succeed.
You might also find Resolution’s Mentoring scheme helpful, pairing you with someone outside your team to help guide you through problems you may be facing.
Educating clients on long-term financial planning
Post-divorce, clients often need to adjust to a new financial reality. It’s crucial to assist them in planning for the future, at the same time remembering you cannot do it all nor should you be expected to know everything. Here are some simple ways to think about this from the outset of a case.
- Budgeting: Help clients create a realistic budget. If clients struggle with this, some financial advisers can assist with preparing outgoings schedules and/or income projections for maintenance cases.
- Pension considerations: Ensure that pensions are appropriately valued and considered. Clients can often ignore pensions, with their main focus being on capital and securing a higher share of the equity in their home. Whilst that may be the right decision for some clients, it is not right to ignore their retirement needs. PAG2 is a great guide to when a pensions on divorce expert should be engaged, and it provides a template letter of instruction.
- Tax implications: If there is more than one home or if there are investment assets, you will probably need tax advice. It is best to obtain this early on.
Managing client expectations and emotions
Clients may experience a range of emotions. Similar to the grief cycle, we often do not see clients at their best but rather at their most vulnerable or in defence mode to protect themselves. These feelings can impact decision-making.
- Active listening: Provide a safe space for clients to express their emotions. That means ensuring you give clients time and opportunity to talk.
- Clear communication: Explain legal processes and potential outcomes in understandable terms. Follow up written advice with a call to ensure the client understands, and answer any queries they may have.
- Referral to support services: If clients are not emotionally ready to start the process, they may not be able to make long-term decisions. Ask a client what support system they have in place or recommend counselling or support groups to help them cope with emotional challenges.
Conclusion
As junior lawyers there is a lot of pressure to try to resolve your client’s problems. Whilst I have no doubt you will want to resolve them all, do not fall into the habit, as I did, in getting stuck in the minutiae. We all must encourage clients to take a step back and look at the bigger picture. By doing this, and seeking appropriate support elsewhere when needed, you are much more likely to achieve better long-term outcomes for your clients and avoid burnout.