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Filing a statement before a hearing

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23 Dec 07 #9461 by attilladahun
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Quite clearly stop the divorce!! [OK but really what is the point]

She can have a divorce but not this one. blame free in 18 months if we choose to agree or if we still can't then it will be 4 1/2 years. tion]
[How long is the marriage + pre marital cohabitation? I say that because it may be more expensive in ancillary relief process if the assets increase in value -even though separated DJ's dDO take notice of the length of the relationship ie co hab + marriage -see point below re your £10K contribution.

Though if i defend I could cross petition on grounds of adultery as she has her new partner living in the FMH till she bores of him. she has been arseing around for the last 3 1/2 years with solicitors whats the rush?

[If you accept the marriage is over I would strongly suggest it is not only better for you but also your children that things move on. I suspect the main reason for not doing so is you feel that will assist your wife and you don't want that. It would be easy to agree with everyone on here but I am a solicitor who does not like to tell client's what they want to hear -the job is to predict what the Court will do or award THEN act on the client's instructions and sometimes people will do daft things.

There is life after divorce......and it is so important to remeber the good things from the marriage especially the children and forget as quickly as possible the bad things and move on.]

No mortgage boys school at the top of the garden. I'm not expecting or asking that the FHM be sold It means I'm still keeping a roof over my childrens heads. Youngest is 6. [ So if jnr goes to UNi you will have to deal with the mother for c 18 years -the danger therefore of dragging matters on will make it harder to deal with the child issues as ineviteably W will be resentful of you not allowing her to move on.}

I'm prepared to wait 12 years for a deferd sale

[and very fair of you especially as you could pay hefty CGT if the property goes up in value - now an old judge gave a client of mine advice in a situation like this -he said to him that if you accept the marriage is over and your wife has a relationship he suggested rather than spend money on a defened divorce it would be better spent sending THEM on a holidey in the hope their relationship will bloosom for if he lives with her or she remarries him you will then get your £ and not likely have to face the delay and CGT cost !!!! -Extreme I know but do you see the dynamics.....]

and 50% she can look after my half of our investment till then. Though I would like to retain my £10K pre marital

[ Depends on length of marriage -if long say 20 yrs + it won't matter a stuff.
If shorter then may be it will justify say an equal division of the equity......subject to whether W have SM rights.....but even if she has now if her relationship moves on I suggest you will want a Clean Break.

& £15K post marital pensions [ if that is all the pension has grown post marriage clearly not an issue to worry about]

the only other assets involved. No need to be sharing with solicitors!
[But you will be in a sense as if W continues with defended divorce family resources ARE being used and I suggest family resources would be better used bringing the conflict to an end]

No I don't love her anymore and neither do I lie in bed at night hoping that one day she will come to her senses and we will be reconciled! [= you accept it would be better to move on now]

There are rules and it seems like no one gives a monkey's whether they are adhered to or not.

[Court rules are proceedural - DJ's look wisely at the wider issues...Please read the overriding objective:

The overriding objective
1.1
(1)
These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
(2)
Dealing with a case justly includes, so far as is practicable –
(a)
ensuring that the parties are on an equal footing;
(b)
saving expense;
(c)
dealing with the case in ways which are proportionate –
(i)
to the amount of money involved;
(ii)
to the importance of the case;
(iii)
to the complexity of the issues; and
(iv)
to the financial position of each party;
(d)
ensuring that it is dealt with expeditiously and fairly; and
(e)
allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

Application by the court of the overriding objective
1.2
The court must seek to give effect to the overriding objective when it –
(a)
exercises any power given to it by the Rules; or
(b)
interprets any rule subject to rule 76.2.

Duty of the parties
1.3
The parties are required to help the court to further the overriding objective.

Court’s duty to manage cases
1.4
(1)
The court must further the overriding objective by actively managing cases.
(2)
Active case management includes –
(a)
encouraging the parties to co-operate with each other in the conduct of the proceedings;
(b)
identifying the issues at an early stage;
(c)
deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others;
(d)
deciding the order in which issues are to be resolved;
(e)
encouraging the parties to use an alternative dispute resolution (GL) procedure if the court considers that appropriate and facilitating the use of such procedure;
(f)
helping the parties to settle the whole or part of the case;
(g)
fixing timetables or otherwise controlling the progress of the case;
(h)
considering whether the likely benefits of taking a particular step justify the cost of taking it;
(i)
dealing with as many aspects of the case as it can on the same occasion;
(j)
dealing with the case without the parties needing to attend at court;
(k)
making use of technology; and
(l)
giving directions to ensure that the trial of a case proceeds quickly and efficiently.

As long as the divorce production line keeps churning them out!

[Actually the Court is OBLIGED to adjourn a defended case and divorce if the parties genuinely want to try a reconcilliation or attend mediation so that is not correct

I agree with Bob Geldolf divorce is to easy. {You may well be right I remember thinking reducing the period from 3 years to 1 before divorce could start was a mistake as many parties in their first year struggle on occasons and to opt out after 1 year is sad. However the bad old days of the Divorce Reform Act 1969 were dreadful and there were terrible injustices especially to women]

It seems to me the whole fabric of society is just falling apart. I'm not talking about forcing people to live in violent or abusive relationships. People should try harder to get on.



It seems all to easy to get fed up give up and walk away.My parents are still together after 46 years they still have their ups and downs but they get on with it. [But the difference no doubt is they wanted to work at the marriage..where one doesn't it is torture to keep alive an ailing marriage.]

Had the UB been just issues even petty ones between her and me it might have been different! she's bringing the children into it and IM NOT HAPPY ABOUT IT!!

[It is appaling for parties to do that..DJ's are not at all impressed with that
If she makes say an allegation in the Petition re children you disagree with eg the nonsense re the Porn you should send an open letter offering not to defend the Petition ON CONDITION W withdraws the offending paras of the Petition when she applies for Directions for Trial. She does not even need to amend the Pet'n if it is done that way....At the next directions hearing the Judge will almost certainly tell W's solrs that if they do that he/she would still grant a decree on the remaining UB. If she still proceeds even if she wins but does not persuade the Court the allegations re porn etc are true the Court may award her NO costs for all the divroce incl the defended action.]

Ive just read through the statement she has filed. She has made more allegations that just aren't true such as the children would see me downloading hard core porn from the internet an absolute lie!True to say there is/was a collection of pornographic DVD's in the FHM guess what? I never bought, begged or borrowed any of them they all belong to her!! I didn't watch them either.

[In children proceedings I once had a sad case where a W issued an application to stop contact as she had found a Video H had made of him abusing himself pictured in the quiet of his loft -the indignant W thought the Crt would be apalled with the issue.....Result we got an order for costs payable equally by W and her solrs for wasting the Crt and our time -hell what did the H's activities (however bizarre affected his ability or more importantly the children's ability to see dad which they enjoyed.]

Certain activities I prefer the hands on approach, though I do like watching motor racing!

She infers that everyone in the house was petrified of me so for the sakes of the boys she wanted me to leave! I have I live 230 miles away.

[If you live away then the issue of staying contact will be massively important for you so the C can stay in hols for meaningful periods with you. I wonder whether a swift resolution to all the divorce acrimony would result in a trade off with W agreeing sensible staying contact arrangements.]

She has been involved with one man who was on bail for beating another woman when she meet him. He then went on to brutally beat her whilst the boys were in bed. Has recently finished a 12 month prison sentence for these assaults. Her new partner has been previously sectioned under the mental health act and has a police record for harassment. She met him in a mental health unit a few years ago whilst I had time of work to look after the children for several weeks this actually cost me the job. the neighbours report that it's a very volatile relationship with lots of shouting and swearing going on!

she has told a mutual friend that the boys don't like this man.
She also complains that me only seeing the boys once a month doesn't give her much of a break!

[Great then go for as much contact as you can][It does sound as if the C are in a very unstable environment and if they spend a lot more time with you they will be spared from these pressures. Things may even develop from there ....but it is important for the C that BOTH parents play an important role in their lives.

Why the hell does she even want the boys to spend time with an alleged monster such as me in view of the fact she states she belives she is acting in the children's best interests! [Clearly that is a worry -if she is not going to adequately protect them and make unwise life partner choices she can hardly have any qualms if you ultimately apply for a Residence Order. If you cannot get on with her a joint residence order seems doomed from the start.

If you want to cut out the lawyers why not suggest you and she see a mediator asap to sort divorce and the C issues....if so the finances will be easier to sort.

She also goes onto make further claims of physical abuse which in actual fact were unfortunate accidents for instance I was late taking the boys to swimming lessons we all went rushing out of the front door all the boys were following me out or so I thought in my haste I tripped and almost fell on a skateboard abandoned on the front foot path! i picked it up and in my haste threw it over the the fence into the back garden where it should have been!.At that moment one of the boys had gone back into the house and out into the garden to get something he'd forgotten? the skateboard bounced off a wheelie bin and hit him. the first I knew of this is when I heard him crying.

[Clearly an accident -but the issue is if one looses temper in C's presence it needs to be addressed ]

She now states I deliberately threw it at him!! once she was in alone on one of the bedrooms when one of they boys fell off a bunk bed and broke his leg I would never claim this was anything other than an unfortunate accident.

She goes on to claim in her court statement that I have called her a drunken slag and a whore to the children this is again a complete lie!! I make a specific point of never saying anything negative about her to the children. Especially in view of the fact of the constant threat of legal action on UB over the last few years.

Here endeth the rant for this post!

I apologies to those of you that can't understand my logic and why I'm doing doing what I'm doing.

If you are right and I'm wrong I will come back in the new year and attempt to eat humble pie and tell you all you were right!!

[Sorry my comments are also long but it will give a different perspective
Hope some of that helps]

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25 Dec 07 #9514 by Jacko
Reply from Jacko
Attilladahun

Many thanks for your post and the your time and effort involved. Certainly food for thought your remarks on sending an open letter to the court are a most pertinent suggestion and something I will seriously think about. Though with the hearing on 2nd of Jan I doubt there now will be time?

You are quite right in saying that it’s not my intention to help my W though I’m mindful of any negative impact it might have on the children. Another reason for wishing her to stop in the FHM is with friends and neighbours I am able to find things out that she obviously wouldn’t tell me. Such has her and her new partner both being recently taken away by the police.

Prior to the Supplement divorce petition My wife’s initial claim’s were for a 70/30 split in her favour on the proceeds of the deferred sale of the FMH. Her reasoning as one of the boys is autistic he will be dependent on her well into child hood. He is a bright little boy with no real behavioural problems though she states otherwise. Though he could be considered a little odd. Her argument being bolstered by the fact he gets DLA and she a carer’s allowance. I have written and suggested to her sol that maybe a medical assessment should be carried out to try and assess his long term needs. Something my wife I imagine is likely to want to avoid, as the current DLA would likely get reduced.

I can’t see any court forcing the sale of the house at present, as obviously the needs of the C are paramount. Which is why I see no point in arguing about it. Though this means I’m unable to buy another property that would be suitable for the C to come and stay in. because of current property prices.

Fortunately I have been able to return to my parents though there effectively is now only 2 bedrooms so having the C to stop isn’t that easy.

According to a mutual friend W was absolutely incensed when she was advised a 70/30 in her favour might not be likely. She then later changed to a 60/40 split of the proceeds of a deferred sale of the FHM on our youngest son reaching 18. I’m not sure exactly what she wants now originally on her Form A she was asking for property adjustment and lump sump orders. They have now advised they will be seeking to amend their original proposed application to now also include a pension sharing order and an order for maintenance.

Her annual net income is some £1200 greater than mine. We both have debts mine are some £2000 greater than hers.

The length of marriage is some ten years.

I currently still pay council tax and all the bills on the FMH except food. I have contacted the CSA twice for a maintenance figure. I believe what I currently pay is around £40pm less than if I were paying maintenance. It costs me around £300pm to visit the boys and stop 2 nights in a hotel with them. Financially things are pretty tight.


I have made two offers both of have been rejected. The equity in the FHM at the time was £180,000 it is now £220,000 according to a recent valuation.
1) To sell the FHM now and split 60/40 in her favour that would give her £132,000 and me £88,000 and if I retained both pensions £113,000. (She does have a small pension of £1500)


2) Or a deferred sale of the FMH split 50/50 subject to the standard trigger events. I would still ask to retain the pensions as this would be offset by the possible interest I would lose over that period on £110,000


I would dearly love a clean brake order and be financially free of her but cant see it happening. W likes her life to be in a fluid situation. I believe if she then realises getting want she wants may keeps her stuck there for the next 12 years she then may hopefully agree to a clean break.

As far as custody of the children or even a residency order I have been advised in the past this is not likely to happen until something unfortunate happens to one of the boys.

There are 4 C of the family the eldest C is from her first marriage and she has always openly traded on the fact that I may be unlikely that a court would split the children up. The father of the oldest C has told me in the past that he believes the boy should live with a least one of his biological parents. Which is obviously understandable. He has a good relationship with his son. He remarried some 8 years ago and has not children from this marriage. It would appear it was a condition of the marriage as they are now both in their 40’s and have a DINKY lifestyle. I think he would only seek custody of his C aged 12 if circumstances become extreme.

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26 Dec 07 #9522 by attilladahun
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Clearly this is not a SM case so a clean break will likely be achieved.

A court connot do that for children -any such agreement is unenforceable although I have encountered a case where a complicated order was approved by the Court..but those facts would not apply here.

You don't say what the mtge is and crucially what would be the cost of REASONABLE accomodation for W + C.....the secret to this case is how W can afford to acquire such property and fund her outgoings.

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26 Dec 07 #9523 by attilladahun
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If she works more than 16 hours she will get tax credits etc

What is her income on a monthly basis for

Wages
CB
Tax Credit
Working Tax Credit
Other state benefits?

C's ages so we can ascertain when the benefit income stream may end?

Crt has to try also to ensure you can acquire alt accom. not just live with parents!

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26 Dec 07 #9545 by sexysadie
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Jacko wrote:

Attilladahun



Prior to the Supplement Divorce Petition My wife’s initial claim’s were for a 70/30 split in her favour on the proceeds of the deferred sale of the FMH. Her reasoning as one of the boys is autistic he will be dependent on her well into child hood. He is a bright little boy with no real behavioural problems though she states otherwise. Though he could be considered a little odd. Her argument being bolstered by the fact he gets DLA and she a carer’s allowance. I have written and suggested to her sol that maybe a medical assessment should be carried out to try and assess his long term needs. Something my wife I imagine is likely to want to avoid, as the current DLA would likely get reduced.


If your son is even mildly autistic he is likely to need long term support in managing his life - adults with autism often have problems sorting out relationships and understanding how the world works even if they cope well in the workplace. That he gets DLA suggests that his autism isn't as mild as you suggest as DLA isn't exactly easy to get.

The DLA is for the benefit of your son, so it seems strange to me that you are trying to have an assessment made that would risk it being reduced.

Sadie

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26 Dec 07 #9553 by Jacko
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attilladahun wrote:

Clearly this is not a SM case so a clean break will likely be achieved.

A court connot do that for children -any such agreement is unenforceable although I have encountered a case where a complicated order was approved by the Court..but those facts would not apply here.

You don't say what the mtge is and crucially what would be the cost of REASONABLE accomodation for W + C.....the secret to this case is how W can afford to acquire such property and fund her outgoings.


There is no mortgage it was repaid 3 years ago. After being made redundant I was unable to find work as an Engineer in the West Country that would cover my mortgage payments. We sold our 1st house in the East Midlands which we had kept and rented out. It was bought in my name only in 1997 just before we got married as she was not divorced from her 1st H at the time. The sale of this house cleared both the mortages.

Equity in FHM is £220,000 according to recent valuation though I’m sure it’s more likely to be going down in the present housing market.

FHM was originally a local authority property. There are only 16 houses on the street and not on an estate it is a cul-de-sac location with views out onto open countryside and the Junior School is at the top of the garden. It is a semi with 3 double bedrooms. Basically anice place to live.

We have no immediate family in Devon except for my brother some 30 miles away.


Both our immediate family’s are in the East Midlands. It is possible to buy a similar Local authority property in Leicester, Derby or Nottingham albeit on a large estate and the associated problems that come with that for as little as £120,000. Older 3 bedroom terraced properties can still be bought for under £100,000. West country prices are currently much higher.

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26 Dec 07 #9554 by Jacko
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attilladahun wrote:

If she works more than 16 hours she will get tax credits etc

What is her income on a monthly basis for

Wages
CB
Tax Credit
Working Tax Credit
Other state benefits?

C's ages so we can ascertain when the benefit income stream may end?

Crt has to try also to ensure you can acquire alt accom. not just live with parents!


There are 4 children of the family 3 are from this marriage

12 from her 1st marriage she receives weekly maintenance of £45
10
9
6

Child benefit 4 weekly £217.60
Carers allowance 4 weekly £194.60
Tax Credits 4 weekly £892.40
DLA 4 weekly £109.50
Income support 4 weekly £10.60

Monthly total coming in if my maths are correct £1753.20 + £180 CM which I assume not to be included in her monthly income?

I currently pay all the service bills including Council tax, which is approx £340pcm. I estimate my CM is going to be in the region of £380pcm but that’s not allowing for the cost of travelling to see the C. I don’t want to get into payment arrears that’s why I still pay the bills. I have asked the CSA twice what my payments should be. I assume they will take an interest once I stop paying the council tax?

My net monthly income is £1525

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