Applications and algorithms: the future of divorce

This article was first published in ThoughtLeaders4 HNW Divorce Magazine, Issue 10.

In their most basic form, financial recourse procedures simply require an assessment of what the assets are (quantification), followed by an analysis of how they should be divided (distribution). Much is written and discussed in family law circles about the second part of this process, whether in the context of alternative dispute resolution or in the analysis of published decisions.

However, much less thought is given to the first step (quantification) and, in particular, how to use developed and emerging legal technologies to speed up and make this more efficient and accurate. There is a feeling that commercial lawyers and civil litigants are ahead of family lawyers in their adoption of such tools.

Family law risks being left behind to the detriment of its clients and lawyers who have to deal with new classes of assets and increasingly complex structures.

The purpose of this article is therefore to highlight (without endorsement) a small number of tools currently available and to consider what tools could be developed in the future to help family lawyers adopt a more efficient and effective approach. rigorous quantification. stage of financial recourse cases.

MLTPL

It is not uncommon to be quoted fees of tens or even hundreds of thousands of pounds and time estimates of several months for a business valuation report. The parties are, for obvious reasons, rarely willing to commission their own reports (rather than on the basis of a single joint expert) and so often no meaningful negotiations or discussions can take place until the SJE report is finalized. has not been received, which has been several months. have passed.

MLTPL is an AI-based tool that solves this problem and claims that it can provide an accurate business valuation in minutes and for a fraction of the cost of a traditional valuation.

Although it can be said that this does not replace the traditional SJE which is able to meet with the owners of the company, ask questions to both parties and do not overlook any metaphor, the potential advantage of the parties having a good understanding the company’s valuation from a much earlier stage in the process, and starting to negotiate, are huge. Later, it could also provide valuable “cross-checking” to parties when reviewing a jointly commissioned report, either by adding another data point confirming an estimate or by informing questions about why the expert’s point of view differs.

Capitalize

Most family lawyers always have the latest Glance on their shelf and will look to the Duxbury tables it contains when advising and negotiating possible capitalized maintenance awards.

While this is a good starting point, it often seems like these tables are also seen as the last word on the matter, despite the “brutal” way they work. The columns are divided into 12-month segments, it is not possible to incorporate “reductions” or maintenance increases or to take into account expected capital inflows in the future when, for example, the beneficiary must reduce its workforce.

Capitalize offers the ability to do all of this and therefore can produce much more personalized calculations tailored to the particular circumstances of the parties. It is easy to produce several different variants, so that a range of options can be considered and presented to a client when advising them on the potential terms of a settlement.

Open bank

It is not uncommon for bank statements presented on a Form E to span over 300 pages across several different accounts. Even in the post-pandemic era of e-bundles, these are usually provided as scanned hard copies and anyone looking to analyze these statements simply has to scroll through page after page and hope to spot patterns and discrepancies. If a more “analytical” approach is required, it is not uncommon for junior attorneys or attorneys to be paid to, in effect, copy transactions from these statements into Excel so that they can be more easily analyzed.
It is often suggested that it would be useful to be able to “scan” paper or PDF statements using character recognition software so that transactions can then be analyzed. In the age of Open Banking, this is simply not necessary. It’s like asking for an extra-long extension cord on a landline phone instead of using a mobile phone.
Open Banking provides the ability to quickly (in as few as five mouse clicks) and securely access raw transaction data from all of a customer’s bank accounts in all of their banks in one place. This data can then be exported to Excel and, once there, transactions can be easily categorized and analyzed to produce a budget that the lawyer can be sure really reflects the reality of the client’s historical spending. Most clients know, and lawyers can help them, the cost of their mortgage, utility bills and travel. They may not realize, until presented to them in a simple format, how much they spend each year on their morning coffee or on Amazon. Open Banking makes it easy to identify and process this type of recurring expense.

There is no reason why an opposing party should not also be obliged to use Open Banking to provide their own transaction data in Excel format to the other party – it is exactly the same data that they are obliged to to provide with their Form E, just in a different format. Once received, it becomes much easier and faster to spot patterns and discrepancies and avoid the careful bank account analysis required to analyze another party’s budget.

While in the future tools may be developed to automate the collection of this information for Form E1 purposes, in the meantime similar (albeit less efficient) results can be achieved by asking the client (or potentially other party) to download transactions from each of their online bank accounts in CSV format before compiling them into a master Excel spreadsheet.

As can be seen above, family law technology is still in the “enhancing existing processes” stage.
There is clear scope in the future to develop tools to help parties resolve aspects of many claims for financial relief without the need for such involvement from lawyers or the courts. Just look to other common law jurisdictions where they employ algorithmic processes for areas where English law still relies on discretion, such as spousal support, for example California.

In the meantime, family lawyers should seek to use already existing tools that will improve the accuracy of the quantification and analysis stage of their advice. It is no longer enough to rely on blunt tools in textbooks and “gut instinct”.

If you require further information on any subject covered in this briefing, please contact Edward Floyd, Alex Woolley or your usual firm contact on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your particular situation.

© Farrer & Co LLP, October 2022

Sharon D. Cole