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What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


Am I wrong?

  • epitome title
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25 Mar 12 #319966 by epitome title
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My stbx and myself split up in 2004 and sold the FMH. The proceeds of the sale were divided between us and we each bought our own houses.

In 2004 we had been married 18 years and we did not do anything with regards to divorcing

We have reconciled three times and out of the 7 years between 2004 and 2011 (when we finally split and I started divorce proceedings) we were reconciled for a total of 5 years.

I have had an opinion from a friend, who thinks I am wrong to be going for a financial settlement now, she thinks I should just walk away, given that the FMH was sold in 2004 and the proceeds split.

My solicitor and barrister opinion says that our marriage ended in 2011 and at that point, we should be judged financially and an appropriate settlement made. Stbx is considerably better off than me, given that I have bought and sold four properties, (either to get away from him or go back to him) and given the property market, I have ended up with a small property with a reasonable sized mortgage. He has stayed put and let me do the running around.

Anyway, my question is - am I wrong to be going for a settlement or should I just walk away?

Thanks for your / any replies

xx

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25 Mar 12 #319969 by dukey
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Without knowing your respective circumstances and finances no one can really comment.

As to the question of when the relationship broke down, well its 2011, yes you split in 2004 but still lived together five out of the seven years from 2004 finally calling it a day in 2011 when proceedings began.

As far as the law is concerned financial claims remain live until you have a court sealed Consent Order, there is a ton of case law to underpin this, i think mots are aware of a case not that long ago where a couple got divorced and the neck end of ten years later the guy won big on the lottery, they had lived apart for ten years but his ex wife still took him straight to high court even though he offered a substantial sum, rather than wait for the final judgment he agreed to pay a few million.

Rather than listen to your friend listen to your solicitor and barrister, they are the paid experts after all.

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25 Mar 12 #319971 by epitome title
Reply from epitome title
Thanks Dukey

I have posted the whole long and sorry story in a post called "Background to my 25 year marriage & three splits" if you want to have a look at it, but thank you for your reply. To be fair, it is pretty much what I wanted to hear

Thanks :)
xx

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25 Mar 12 #319976 by dukey
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Right i found it and read the whole thread, what Had says makes perfect sense and she is one of the top AR advisers on Wiki, no doubt about that.

There are some concerns though, the big one being if this progresses to a final hearing it is a gamble, its down to the opinion of a judge, for this reason alone take notice of what the judge has to say at FDR, i assume you are paying privately so you know how much this all costs, a final hearing can be very expensive, only a month ago a guy paid 22k for the final hearing with similar assets and income to your matter, ok a bit more in terms of joint assets but you get the picture.

Another concern is the judge may well take the opinion that some agreement was made back in 2004 over the land, this is actually the largest asset at 180k, if this happens your potential settlement will be greatly reduced.

The way to approach these hearings is to show a need, the first being housing, so what is your need?, what did you have in capital needs in form E, your respective housing needs are met, this tends to be the biggest potential need, i suppose what i am saying is you are asking for 80k, why do you need that amount.

I dare say the other side will paid you as greedy and attempting a second bite of the cherry, don`t be surprised if they suggest your current position is due to the fact you kept leaving and buying and selling, she came back then left came back again and then left again so its you who caused your relatively poor position compared with your husband who stayed put.

I in no way suggest the above is true but to be fore warned is to be fore armed.

It could go one of two ways,

The judge says you were paid for the land back in 2004, your not entitled to anymore, you walk away with not a lot.

The judge decides you both stayed married no proceedings were instigated, no Separation Agreement and most importantly you have no Consent Order, as such after a long marriage and given the land is over and above housing needs you get x amount, probably half of its value.

Now your sitting there thinking this bloke talks bollocks, the judge must abide by mca s23(1), and yes they do but its very much down to how the judge on the days views the so called facts and who is actually telling the truth, you say during the time from 2004 to 2011 you both lived together for five years, he may argue it was much more sporadic than that, you know for example he promised to give you some money if he sold any of the land, he now says your not being honest, do you see the problem?.

I`m sure counsel have given you some idea of a likely outcome, but lets say it all goes wrong, you walk away with nothing like what you expected and counsel say lets appeal.

Hoop jumping time,

An appeal will only be successful if you can show,

The judgment was perverse (totally unfair)

The judge made an error in law (very rare)

The other side did not disclose income or assets that would have materially changed the judgment

Appeals are time sensitive, usually you have 28 days (it does vary) and they tend to be cost sensitive, if you lose you pay the other sides legal bill, oh and they can take forever.

So you can end up with a judgment and the barrister says well that bits wrong and the judge forgot to take this bit into account ect, it means nothing though, the fact is the appeal judge needs to decide that the order was not in line with what you could expect another district judge to order.

Many appeals are successful but more are not, those that are often become case law, there seems to be an almost standard letter circuit judges send out saying district judge so and so has held the position for x years and has a most excellent reputation, its a nice way of saying bog off if you go through with the appeal ill be the bloke shooting the fish in the barrel.

Listen carefully to what the judge has to say at FDR and then have a chat with your barrister, with any luck your ex will offer a reasonable settlement and all of this will be wasted typing.

Here`s hoping eh.

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