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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.

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If she is allowed to stay in the house

  • Nicola
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26 Jun 07 #1007 by Nicola
Topic started by Nicola
Hi

Quick intro...

Husband and wife, together 10 yrs, married 3, separated 1 year. 2 children 8 and 10, both live with mother.

Family home in husbands name, he paid deposit, built half of it and pays his mortgage. She wont move out. He can not afford to pay his own rent plus the mortgage. She works but does not earn enough to take the mortgage on.

I understand a court can rule she stays there until the children are 18, then the house gets sold and split.

If this happens... who pays the mortgage? Neither husband or wife can afford it, but she is taking it to court insisting she will get the whole house and he has to pay for it.

It literally can't happen as she will cause him to go bankrupt then they both lose out. Please don't reply with suggestions of "you should try to talk it through with her" as she has been given a harassment warning as she is that abusive. He can not afford a solicitor and does not qualify for legal aid. It goes to court in a week! Help!

  • PETAL
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26 Jun 07 #1008 by PETAL
Reply from PETAL
Might not like this one but It can happen Im left paying 15 months now on a house meant for 2 struggling. He wants equity but wont help pay until sale. Mortgage has been in arrears and Dad bailed me out he still would not pay and told mortgage field officer he wont pay 1 penny. No sale on house I have had to go to CCCS who made my budget so tight i get a whole £5.00 to spend a month as I apy everything as well as joint debt. He is noe insisting on going ancillary relief route to bancrupt me sol wisw. He wont accept any offers but wont make any either.

Meanwhile he holidays 6 times this year and has £80.00 a week hobby.

I cant pay much longer and now have ccj and defaults due to his non contribution and possible bancrupcy soon.

Still the court let him apply for expensive court hearing which is costing more than the money left after all debts and mortgage paid off after sale - if I ever sell 6 months and only 3 viewers.

Legal system doesnt cars who pays and the mortgage company I was told since your ex has not told us he has moved we can not write to him at the address you provided and we do not get involved in matrimonial matters. In other words they dont care if 1 party wont / cant pay they will just take house if they dont get the cash from someone they dont care who.

However a judge may get a posession order to ensure sale and the othe rhalf gets more of the split for new home and you pay main until 18.

Thing is courts and sol bills mount up fast and legal aid is not usually easy to get if you work.

Keep fighting and try to sort this out amicably if you can - keep the costs down.

Good Luck.

  • LittleMrMike
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26 Jun 07 #1011 by LittleMrMike
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I'm afraid it's impossible to advise without knowing the full financial circumstances of both parties.

Firstly, the Court's primary consideration will be the children and their need for a home.

So I think a judge would ask him/herself - if the wife and children are to have the right to live there until the youngest is 18 ( which is quite a normal order in such circumstances ) then someone has to pay the mortgage. So the judge would look at the wife's income, from all sources, and consider what, if anything, could be done to augment it. Does she have enough income, from a combination of her own wages, child support, tax credits and any spousal maintenance which the judge may see fit to order, to service a mortgage ? Is it possible to re-schedule the mortgage to allow a longer period for payment and thus reduce the cost ? Has the wife discussed the matter with the mortgage lender ?

But the judge also has to consider the husband. (S)he must allow him to retain such income as will be necessary to meet his needs. A Court will not impose an order of such severity that the husband will be on the street.

You say that there are insufficient resources to house both parties. I cannot comment on that, because I do not know what their resources are. However, let us suppose, for the sake of the argument, that this is true.

In that case, if I were the judge, I think I might be inclined to order a sale on the basis that there is no point in transferring the house to the wife if she cannot afford it. All that would happen is that the house would, sooner or later, be repossessed. In that event, the legal costs, 'penalty charges ' administration fees, and that sort of thing can mount up at a frightening rate. The wife may insist that the husband must pay till she is blue in the face - but a Court won't order a husband to pay a sum he cannot afford.

The wife should investigate her position regarding (a) her entitlement to tax credits, if any ; (b) her likely income from child benefit and child support (c) whether the mortgage could be re-scheduled or whether she could negotiate interest only payments for a time, etc ; (d) what is her position concerning the possibility of housing benefit if she has to go into rented accommodation (e) the effect on benefits if the house is sold and she receives a lump sum . (f) whether she may be entitled to another benefits and if so what. This advice is obtainable from a CAB. Would any spousal maintenance be appropriate ? I just do not know enough to advise.

The husband should be advised to draw up a written budget, showing ( a) his income from all sources, preferably supported by pay slips or other documentary evidence (b) details of his regular outgoings , including his rent, council tax, food, housekeeping, utility bills, again supported by evidence. He needs to consider his liability for child support too.If he says he can't afford to pay, he has to demonstrate that to the judge.

You say there is only one week to go. Not really enough time to get together evidence and information as complex as this. The judge might even adjourn the case.

Look, folks, I do not have anything like enough information to try and predict the outcome of a Court case. You have to remember also that I am not an expert in this field. What I am pretty sure about is that a judge must consider the childrens needs, and their need for a home, first and foremost. But I am pretty sure that a judge will not leave the husband without some roof over his head. What I want to suggest is some lines of enquiry for both parties. I am trying not to take sides, because a Court will not do so. You have to work out some arrangements to make sure both parties have somewhere to live and enough income to live on. I think both husband and wife would benefit from a visit to a CAB although I will tell you for definite that a CAB will not advise both husband and wife - you would have to go to different bureaux.

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