Robert De Niro’s paying…

De Niro

Robert De Niro’s paying…

Robert De Niro and Grace Hightower are engaged in a tortuous divorce battle; recently the couple clashed in a virtual hearing over Ms Hightower’s spending habits. Partner Liz Cowell takes a closer look at the issues involved in the split.

The facts

Robert De Niro was married to his wife Grace Hightower in 1997.  Their relationship would be classified as a long marriage in our jurisdiction; this is despite the fact that they separated in 1999 and started divorce proceedings, because the divorce never went through, and they renewed their vows in 2004.

When the couple renewed those vows, they also entered into some sort of nuptial agreement.

The agreement would provide Ms Hightower with a $4.7m house and a further lump sum equivalent to approximately half a million dollars, plus an income of $1m per annum, providing that De Niro was earning at least $15m a year.

Now that the couple have separated again and divorced in 2018, Ms Hightower is seeking 50% of De Niro’s total wealth, which she estimates to be $500m.

Defending his position, De Niro claims that his ex-wife is a spendthrift and he has been forced to continue acting and taking part in films which he describes as “dreadful” to maintain the parties’ lifestyles.  He also claims that he has substantial indebtedness for unpaid taxes which he intends to pay off using the income earned from his next two films.

The matter has reached a preliminary stage in which the judge has pointed out to both parties that their expenses are extraordinary, which is an early indication that Ms Hightower’s demands to maintain her lifestyle spending circa $375,000.00 per month is unlikely to be supported by the court.

What would happen here?

Would Ms Hightower be bound by the nuptial settlement entered into when the parties renewed their vows?

In this jurisdiction there have been a series of decisions by the High Court that where the parties have given full disclosure of their financial position and have had proper legal advice, whilst not binding the court such an agreement will be used as evidence and will influence how the court approaches its duty of fairness.

From the information available in the media, it appears that Ms Hightower is now protesting that she was misled as to the extend of her husband’s wealth at the time of the agreement.  Given her status and financial acumen, such protestations would be easily rebutted if she was given full legal advice at the time, particularly as she had already been living with De Niro for several years and was unlikely at that stage to be ignorant of her husband’s earnings and wealth.

The matter of the extent to which the nuptial settlement should be considered would probably be dealt with at a preliminary hearing.

Division of assets

That said, after a long marriage the starting point for the division of assets is 50/50, taking into account pre-acquired wealth and after the deduction of each parties’ debts, which means that any financial settlement would be derived from the amount De Niro would have after his tax bills were paid.

It seems that De Niro’s legal team are complaining that he is being ordered to provide disclosure – however, in our jurisdiction disclosure is mandatory for all parties going back at least 12 months, and he would be required to provide the same, as would Ms Hightower.  Ms Hightower has been accused of hiding the purchase of expensive jewellery: this would have to be disclosed and valued.

Allegations

Sadly, it would seem that unpleasant allegations are being made about Ms Hightower who is accused of being a spendthrift, one who had started life as a waitress from a poor background.  It is implied that she married De Niro simply for his earning capacity.

Would this be relevant in our jurisdiction?

The answer to allegations about Ms Hightower’s background is that it would be utterly irrelevant, albeit the court would look at Mr De Niro’s pre-acquired wealth as well.

The allegations regarding her spending habits are relevant however; not because she is a spendthrift, but because the court needs to look at the parties’ resources, status quo and what are her reasonable needs.

Our courts would be minded of the fact that Mr De Niro is already 77 years old and cannot be expected to continue working indefinitely.

A challenge for the court brokering a financial settlement between the parties either here, or in the United States, is to try and achieve fairness and that is done here in England by applying a yardstick of equality. It is also mandatory upon the courts in England to achieve a fair, clean break where possible, and this can be done by dividing capital and working out how much income would be available from the capital to meet needs and if there was a shortfall, adding a further capital sum.

The court would be using the facts available to look at the nuptial settlement and maybe capitalise the maintenance payable, but given Mr De Niro’s age it is unlikely he would be expected to continue working for more than two or three years.

If Mr De Niro was before the English courts he would need to be more generous if he wanted settle matters, and he would be encouraged to stop making allegations about his wife, who is the mother of his child and to whom he has been married for more than 20 years. At the same time, Ms Hightower clearly needs to curtail her spending and put forward a reasonable proposal for settlement.

 

If you are are considering separation or divorce and require specialist legal advice, please get in touch today.  We are here to help you.

Variation applications – what do you need to know?

variation order

Variation applications – what do you need to know?

Covid-19 has had an impact on most people’s financial position and for many, the impact has not been positive. When times get tough, people start to audit their finances. Can we afford to keep the subscription to the magazine that usually goes unread, the direct debit to a streaming service that we don’t even remember the password for, or – more significantly- a spousal maintenance standing order? Conversely, we also look at our monthly income and wonder if there is a way we can eke out a little more. Can we up our hours at work, sell some clothes online, or other money-saving measures?

In these times of continuing economic upheaval, it is to be expected that variation applications are on the rise.  Solicitor Heather Lucy explains.

What can the court do?

The court has the power to increase, decrease, suspend, terminate, extend (in certain circumstances), or capitalise the spousal maintenance payments. Capitalising payments simply means that a lump sum is calculated based on the term and quantum of the order, which is then paid and the ongoing obligation ends. This is good for the payee as they have the certainty of having the cash in their bank account and also good for the payer as they do not need to look over their shoulder with regard to a potential application for an upward variation of maintenance if they get a promotion, for example. The issue with capitalisation, however, is usually affordability.

The key thing to remember with spousal maintenance is that it is based on the needs, as agreed or determined by the court, of the parties. It is by showing that those needs, or your ability to meet your own needs, have changed that may give rise to a variation of spousal maintenance.

How do I do it?

The first port of call should be to speak to your ex-partner. Explain the situation to them and see if you can come to an agreement. You can invite them to come to mediation with you to see if the input of a neutral third party assists. If you do not seem to be making progress, you can instruct a solicitor to put the request to them more formally and see if you can come to a resolution outside of the court arena.

If it does not work, you will need to consider making an application to the court. It is crucial to understand the potential cost implications before applying. The usual family law rules, where parties meet their own costs save for exceptional circumstances, are suspended in variation applications. The successful party (be that the party applying for or defending the application) may claim their costs from the unsuccessful party. For this reason, it is sensible to reach an agreement without issuing proceedings wherever possible.

What happens in the court proceedings?

If you have a spousal maintenance order in place, there is a good chance that you have been through court proceedings or negotiations via solicitors. This means that the process of financial disclosure will be familiar to you. The courts need to know about each party’s assets, liabilities, income, and outgoings before they can make a decision. The first step, therefore, is financial disclosure which is usually done by way of Form E1. The court will then be in a position to decide whether it would be fair to vary the original order.

What do the courts consider?

The court’s primary consideration will be the welfare of any children. It has a broad discretion in terms of the orders it can make, as set out above, but they will need to focus on any changes in circumstance since the original order was made. This is important to consider as it will be very difficult to persuade the court to vary the order if nothing material has changed. This means you should be very specific about why you are asking the court to change the current order, for example, are you being paid £100 less a week and need your ex-partner to top up the order by that amount to meet your needs? Are you being paid £100 less a week and therefore need to reduce your spousal maintenance obligation?

The order may not be as straightforward as these two examples, but they are the kind of questions you need to ask yourself.

What’s the bottom line?

If your financial circumstances change, you may be able to vary a spousal maintenance order. Good communication is key and you should start by having a discussion with your ex-partner. This is crucial due to the potential cost implications of bringing an application to the court. Both parties will need to be aware of this and it can encourage negotiation.

It is difficult to provide broad-brush advice on variation as cases will turn on their specific facts. You may wish to take some advice from a solicitor before approaching your ex-partner directly or you might have reached a point where it is clear matters will not be resolved amicably; either way, McAlister Family Law’s team of expert lawyers can advise you.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

What the Family Mediation Voucher Scheme means for you

government mediation voucher

What the new Family Mediation Voucher Scheme means for you

In an attempt to battle the ever-rising number of cases before the family court, the Government is introducing a one million pounds mediation scheme to help separating parents avoid stressful court cases.

Associate Melissa Jones takes a closer look at what this new scheme could mean for you.

new family mediation vouchers

2000 families will be given £500 in total to use towards the costs of mediation. At present, if a mediation referral is made, either one party or both parties contribute to the fees, or there may be an exemption if certain criteria is met or legal aid applies.

The statistics provided by the government indicate that more than 70% of couples who use mediation resolved their issues outside of court.

Could mediation really help me?

The scheme is aimed at families who have disputes relating to private law children matters or financial matters relating to children of the family.

The information provided to date suggests there is an eligibility element to accessing the scheme in the first place, but if you do happen to obtain a voucher what can you expect from mediation?

What is mediation?

Mediation is a form of alternative dispute resolution which can help you achieve the resolution of many issues on which the court would otherwise decide. There are of course cases where mediation is not suitable – cases concerning domestic abuse or child protection issues for example – and the mediator will confirm this from the beginning.

Even with the pandemic, mediation is open and still accessible to hundreds of families up and down the UK and this is being achieved with remote appointments (via Zoom or Skype).  This might even seek to reduce any anxiety you have of being in the same room as your ex or former partner.

A trained mediator will allow both parties to speak and will look to see what matters can be agreed upon. It is a prerequisite to court that the parties attend mediation. The court places emphasis on mediation from the beginning and rightly so because the court is a last resort and if it can be avoided, it should.

Why it works

It is far better to reach an agreement between yourselves than have a court impose an order upon you. Mediation is effective in helping you negotiate an agreement regarding child arrangements or a division of property.

It is a positive if you and the other party who takes up this scheme, as it implies that you both have a joint goal of resolving your dispute.  If you do reach an agreement during mediation you can then take legal advice on this and make sure that any agreement is in your best interest.

Where it does not work

It is of course not suitable for those who simply will not engage in negotiations, or are unwilling to be flexible or to compromise, as this will be a counterproductive exercise.

A mediator also has no power to force you or the other party into an agreement and anything discussed in mediation is “without prejudice”, meaning you cannot rely on this in court proceedings.

What is being proposed?

What is being proposed under the Government’s mediation scheme is that once the parties have attended mediation and reached an agreement, it is then considered by a court before making it into a legal binding and enforceable court order.

It remains to be seen how this will work in practice, as mediators are precluded from giving legal advice and as such, the usual practice is that, if an agreement is reached, your solicitor would then advise you on the agreement before this is ratified by court. Thus, there is a question mark over when and at what stage you will engage your solicitor during the scheme, before the matter is considered by a court and what happens once you are in court proceedings.

We advise those who do take up the scheme to you stay in touch with their solicitor during the mediation process, and to ask for advice as matters progress.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

Children giving evidence in court

children giving evidence in court

Children giving evidence in court

In the final blog of our series covering the Brad Pitt and Angelina Jolie relationship difficulties making headlines around the world, Senior Associate Nicola McDaid discusses the very difficult topic of children giving evidence in court.

Angelina Jolie and Brad Pitt‘s son Maddox has testified against his father during the couple’s contentious divorce and custody battle – offering a “not very flattering” opinion about the actor.

When a couple goes through a separation or divorce, it can be an exceptionally difficult time for all concerned, but when children are involved it can become even more emotionally challenging.

The issue of whether a child should give evidence in proceedings should be considered at the earliest opportunity by the Court and all parties. This decision will depend on the purpose of the child giving evidence, the significance of the allegations made and whether other evidence is available.

This is not commonplace and every case will be different, so specialist advice on this issue is crucial.

Following the leading case of Re W (Children) [2010] UKSC 12 and again reiterated in by McFarlane LJ in E (A Child) [2016] EWCA Civ 473, the Court’s main objective is to achieve a fair trial. With this objective the Court must weigh up two considerations to a child giving evidence in Court. They must consider:

* the advantages that it will bring to the determination of the truth

* the the damage it may do to the welfare of the child.

In determining these considerations, the Court must have regard to:

* the child’s voice, age, needs, maturity, vulnerability, abilities

* the nature of the allegations

* the quality and importance of the child’s evidence

The Court must always take into account the risk of harm which giving evidence may do to the child and how to minimise that harm. Section 1(3) of the Children Act 1989 sets out a checklist of factors the Court is required to take into account when making a decision which affects the welfare of a child. The Court will also need to take into account practical and procedural issues, such as:

* giving the child the opportunity to refresh their memory

* the type and nature of the questions

* the appropriate identity of the questioner, as one person is generally identified to ask agreed questions of the child.

A child generally does not give evidence to the Court in the same way as an adult would.

The court also needs to look at what other evidence maybe available.  The child may have given an interview to the police for example. If so, the Judge may need to view the interview before making any decision as to whether a child should give oral evidence to the Court.

Following the case of Re W, 12 guidelines were issued. They were specifically designed to assist the Courts in deciding upon whether it is appropriate for a child to give evidence.

If there are criminal proceedings in which the child has given interviews, then there needs to be close liaison between the criminal and family Courts so as to avoid any prejudice to either set of proceedings.

As can be seen is it a complex area to navigate and for children, giving evidence in court can be a frightening experience for them; all factors need to be taken into account not only to ensure that the case is dealt with justly, but also to protect and minimise any emotional damage that could be caused to children who go through this experience.

At McAlister Family Law we have an experienced team of family lawyers specialising in this area, who are passionate in ensuring that the voice of the child is heard but also ensuring that they are protected wherever possible.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

Will a history of drug and alcohol misuse prevent you from spending time with your children?

Brad Angelina drug and alcohol

Will a history of drug and alcohol misuse prevent you from spending time with your children?

Continuing our series of blogs covering the Brad Pitt and Angelina Jolie relationship difficulties currently making headlines around the world, today Associate Melissa Jones look at Brad Pitt’s history of drug and alcohol misuse, and examines whether this would affect a separated parent’s contact with their children.

Brad Pitt alcohol

It is a matter of record that Brad Pitt has battled addictions to both alcohol and marijuana for many years, and attended Alcoholics Anonymous meetings for more than a year after his now ex-wife Angelina Jolie filed for divorce from him in 2016.

“I can’t remember a day since I got out of college when I wasn’t boozing or had a spliff, or something.” Pitt told GQ Style in 2017, several months after Angelina Jolie, with whom he shares six children, filed for divorce. “I’m really happy to be done with all of that. I mean I stopped everything except boozing when I started my family.”

Child contact and the law

The law, as it stands, presumes that it is in the children’s best interests for each parent, even when they have separated, to continue to be involved in the lives of any and all of their children, unless such involvement may subject them to a risk of harm.

This misuse of alcohol, drugs – both prescribed and illegal ones – often feature in cases coming before the family court, where one parent wants to prevent contact with the couple’s children because of concerns around the safety of the children. That allegation may set in motion assessment, by the courts, CAFCASS or Social Services, of the risks that may be posed to the children involved.

As family law solicitors, we are all too familiar with such cases coming before family court, and it is not unusual for an ex-partner to allege the other parent should have only limited, or indeed no, contact, with the couple’s children because of previous drug and alcohol misuse and the risk such misuse poses to those children.

What measures can the court take?

The court has a number of ways it will both establish any potential risk and manage it:

– it can make regular testing and monitoring of alcohol and drugs, which might include hair strand testing, breathalysing pre and post child contact, and/or the wearing of a SCRAM bracelet*

– it can require an undertaking that the parent will not consume alcohol or drugs when having contact

– it can require the parent’s attendance on specific therapeutic and remedial courses

With parents that do have difficulties like those outlined above, from the courts’ perspective, there are ways of working through them so that children can maintain positive relationships with both parents.

If you are affected by any of the issues raised here, please get in touch today.  We are here to help you.

*Like a breathalyser for the ankle, the SCRAM Continuous Alcohol Monitoring (SCRAM CAM) bracelet provides 24/7 transdermal alcohol testing, automatically sampling the wearer’s perspiration every 30 minutes.

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