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What are we each entitled to in our divorce settlement?

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  • juttabeck
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12 Jan 08 #10538 by juttabeck
Topic started by juttabeck
My partner's ex is trying to claim that he should give her the marital home, with no charge in his name, 100% transferred to her name. The house is in his name, it was bought before they married, and has obviosuly gone up in value.

She is arguing that because he lives with me, he has no requirement for a property of his own. Is this correct? Is this a reasonable assumption to make bearing in mind that we are not married, hae only been living together for a few months, and he has no claim on my house (and nowhere to live should I choose to throw him out?)

He is arguing that he needs to have a property of his own suitable for having his children to stay so that he does not have to rely on my goodwill.

The other issue is that although I am pregnant, the stress that the protracted divorce proceedings (as a result of his ex's insistence that he is hiding income) is placing on our relationship has meseriously thinking about asking him to move out. Will this help his case?

My concern is that he loses a house he has worked hard for because I happen to own one and not rent.

We have successfully argued that there is enough money in the marital home for two houses to be bought with the equity, but she insists that the only house that meets her needs is the one she is currently in.

Does anyone know the court Stance on this?

  • LittleMrMike
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12 Jan 08 #10545 by LittleMrMike
Reply from LittleMrMike
Juttabeck,

An order for the outright transfer of the former marital home into the sole name of one of the spouses is a pretty drastic thing to do unless there are two or more houses
involved. Such orders are not frequently encountered these days because the dispossessed spouse would have to be compensated for the loss of the asset ; this might be done by dismissing a claim for spousal maintenance, for example ; but if there are children involved then the Court can't absolve your partner from his obligation to pay child support, so unless the dispossessed spouse has substantial assets which he is allowed to keep, such an order would be too draconian, and a Court would be reluctant to do it.

But if there are dependent children, one way of doing it is to order a sale and division of the proceeds, but the sale is deferred until the spouse re-marries or the youngest child reaches 18. Hard to say what a Court would do in your case, because the Court has to ask itself the question as to what the parent with care ( usually the wife ) will do when the house has to be sold ; will she be able to buy another house with her share ? For this reason, there has been a tendency to give the wife more than 50% of the equity on sale, but some solicitors, so I gather, are saying that in view of recent case law,
the split should be 50/50 or in that region. But you see the point.

As to your partner being able to buy a house to have the children for staying access - well, this is a reasonable aspiration, and one which the Courts would in principle support, except that you can't put a quart into a pint pot ; if the resources aren't there, the main priority for the Court would be to provide a home for the children, and also to make sure that the dispossessed spouse has somewhere to live. But it doesn't necessarily follow that he must own the house ; rented accommodation, or accommodation with a new partner, might be regarded as adequate, although with cohabitation, the Court can and will look at the stability of the relationship.

Would it help his case if he moved out ? Oh dear, that's a question I'm reluctant to answer, if only because I don't know the personalities involved. Nor do I know the state of your partner's finances or those of his ex.
It could be that there is enough equity to buy accommodation suitable for the wife and children and leave enough for the husband to put down as a deposit. For most ordinary mortals, however, that isn't the case.

If he moves out the ex might argue that this was contrived and tactical, done for the specific purpose of improving his position, and that if for argument's sake the house were sold, your partner would move back in.

For what it's worth, my feeling is that the Courts are not likely to deprive your partner of the entirety of his interest in the house. He might well have to wait some time before he can realise it. As I explained, his difficulty, and one that is faced by very many divorcing men, is that the Courts are always primarily concerned with the children. I doubt if moving out would help his case all that much, quite honestly, but that is a gut feeling and I have to tell you what any solicitor would,
that without a full knowledge of the facts, it is unsafe and most unwise to offer advice on the basis of facts which may be wrong.

I do hate to hear of these cases where divorce has become a pitched battle and it is sad to see you caught up in the backwash. You need all the support you can get at this time. But if I can help to offer some of that support, madam, then I am here and there are many of this site who will be only too pleased to help too. You don't have to face the situation alone.

Mike 100468

  • Fiona
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13 Jan 08 #10553 by Fiona
Reply from Fiona
It really depends on the overall picture. In our case, for example, all the equity was offset against my exhusband's pension which was our largest asset by far and he wanted to keep it in tact.

  • juttabeck
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13 Jan 08 #10571 by juttabeck
Reply from juttabeck
Mike/Fiona,

Thanks for your advice.

My partner and I have put together a set of documents proving that on current house prices, there is enough in the equity pot in the ex-marital home to re-house his ex and the children in a similar property, nicer area, closer to her work, with better schools. AS WELL as also being able to re-house him in an area close to his work, where the children could be properly looked after when they come to stay.

The marital home is curently on some kind of police safety watch as a result of the ex taking on the local drug dealer, things are stolen regularly from outside the house and other houses on the street, yet she insists that ONLY THAT PARTICULAR house will meet hers and the children's accommodation needs.

Any advice on the likelihood of our arguemnt (that there is enough equity to rehouse them both) being listened to in a court?

many thanks

  • attilladahun
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13 Jan 08 #10581 by attilladahun
Reply from attilladahun
"The marital home is curently on some kind of police safety watch as a result of the ex taking on the local drug dealer, things are stolen regularly from outside the house and other houses on the street"

That may also be a good reason why the DJ may order a sale and W move to a better area...as an inducement the settlement may reflect those better housing needs.....

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