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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.


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Capitalisation of maintenance payments

  • LittleMrMike
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17 Jan 08 #10942 by LittleMrMike
Topic started by LittleMrMike
As some regular posters on the site know, I have been paying spousal maintenance to my ex for 25 years. It is possible that, in the not too distant future, I could inherit a sum which would be sufficient to buy out the order. However, if I had sufficient cash to make this realistic, I would rather keep the cash and carry on paying for as long as is necessary.

The reason is that my ex's state of health is such that predicting her life expectancy is, in my opinion, very difficult.. She could live 2 years or it could be 20. So if she only lives two years, I could be paying a large sum to my ex in exchange for being relieved of 2 to 3 years' maintenance. My ex's only relatives are two sisters, both extremely wealthy women. Supporting my ex is one thing - giving a windfall to her sisters is quite another.

If I were faced with an application for captalisation brought on behalf of my ex, and I had the cash to make this possible, a Court might have three choices (a) allow me to carry on paying the order for as long as necessary ; (b) order me to pay a substantial cash sum to my ex in return for the dismissal of all claims against me (c) order me to secure the payments in some way, which at least might mean that if my wife dies any unexpended cash in the fund reverts to me.

Does anyone have any experience of how the Courts deal with this issue ?

Mike 100468

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17 Jan 08 #10965 by Ladybelle
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I cant actually answer your question but am very interested in the part where you say you have been paying SM for 25 years. I had been led to believe that no court would make my 2bx pay SM for that long.
Does it depend on circumstances then ? Is it possible I might in fact get SM for that long as our mortgage still has 22 years to run.
Did you choose to pay this SM or were you forced ? Sorry if that is being too nosey :(

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17 Jan 08 #10969 by LittleMrMike
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Annie

Yes, you are correct. It depends on the circumstances. In my case my ex is a very sick lady. We have been totally reconciled and remain good friends to this day.

I agreed to the terms of the order, but of course it is always possible to apply for a variation or a discharge.
But of course my ex had made a claim for financial relief in her answer to my divorce petition, and my solicitor and I were agreed she was going to get SM so there was really no choice but to negotiate a financial settlement.

My experience is not necessarily a precedent for yours

Mike

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17 Jan 08 #10980 by Ladybelle
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He left me because of my disability though, he had had enough of me not being able to go anywhere or travel (hence my name) (also decided to start having an affair) I cant work full time, I can barely cope working part time. I cannot afford to pay the mortgage or hardly half the bills if he wont pay it. He is paying mortgage and a couple others now but I have no idea how long he will be willing to do that for. Because of this I wouldnt be able to rent either, I couldnt get anywhere to be able to even view it !!
I am hoping he will either agree or be forced to pay the mortgage until the end of the mortgage term, which is 22 years. Ideally I would like the house in my name, but I dont suppose I would get it. I wouldnt even mind him still having some share in it, as long as he was made to pay for the mortgage.
He has a very good pension which will go into the pot, but I dont know how it will all work out or when at this stage.
I hope he turns out to be as nice as you Mike :)(but somehow I dont think he will do)

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17 Jan 08 #10994 by LittleMrMike
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Annie

In my case, there is no doubt that my ex was unemployable. Where a party has disability, it will probably reduce or even destroy a person's earning capacity, amd in addition someone with a disability may have increased needs. This is why it is more likely that any maintenance order will be open ended.

By the way, have you considered applying for mobility DLA ?

Mike

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17 Jan 08 #11000 by Ladybelle
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I've just done that and been granted it for 2 years. Because of that I can also get working tax credit with a disability element but even that wouldnt be enough to pay the mortgage, but it certainly helps for now.
I'm just so scared how it will all be worked out. If he wont voluntarily agree to pay it, will a court just order the house sold as there is so much mortgage left ? or will they let me keep the house even if I cant afford it ? so much is all spinning around in my head.
Very early days for me but with my disability it is just freaking me out the 'what ifs' for the future.

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17 Jan 08 #11010 by attilladahun
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Mike the Court plays it safe - I don't think for a minute the Court would consider it -Case law says the Court should only impose a Clean Break of income if the Court is satisfied your W Wife can adjust without undue hardship -in your case because of the sad health problems the Court would be guessing and it would not be possible to really do justice to both of you

For her because as you say she could live 2 or 20 years

For you if the Court chooses a high capitalisation factor and then she sadly died early!

Sure you may be able to afford it with either using inherited money or commutation of your pension..

If I were deciding the case I would keep open the PPO for your wife but because of the high risk of her early death I would not impose a pension sharing order if substantive finances were being decided now but I suspect they are not.

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