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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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Seeking advice

  • googie
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22 Aug 07 #2258 by googie
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I have been married to a great guy for 12 years. During this time we have endured harassment, both emotional and financial, from his ex wife "for the sake of the children". She is now initiating her third attempt at taking us to court to increase her maintenance. Her first attempt ended with the court reducing her maintenance based on our ability to pay, her second attempt was dropped by her solicitor, and for this third attempt she is determined to get us back to court even though we have sent full disclosure regarding finances that have not changed. There simply is no more money. Aside from this--we have three children in expensive schools (we are paying for this as well--she has never contributed financially).

My husband and I believe this legal action is frivolous and irresponsible. It will cost us all a huge amount of money and will ultimately result in large amounts of debt--if the credit is indeed available to us--or the need to tap the children's school funds.

It is our opinion that the truly responsible thing to do
is to simply walk away, continue to pay what we have been paying but not engage in the court proceeding understanding there may be consequences.

It should be noted that the children are older now and will all be in university and out of her house within the next three years. It is likely that her aggressive stance is due to her concern for the inevitable change in circumstance that will re-route the maintenance to the children.

Has anyone ever encountered anything like this who can offer some advice?

  • DownButNotOut
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22 Aug 07 #2259 by DownButNotOut
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12 years does seem a long time to still be fighting variation orders.

Could you clarify a couple of things .....

the 3 kids in private school....are they hers or yours?

Also ..to put 3 kids through private school takes serious cash - 30k per yearish?

so you and hubby must be on very good income (admittedly you may be then spending it all...and largely on the kids).

What sort of financial condition is she in and how is it all about to change?

i.e. is she now getting child support and spousal maintenance (or only one of them)? Is this support due to end when kids are 19? 21? what does the order say?

of course im missing details but get the sense that - once kids are finished uni and working .....you and hubby will have that very big income with no more kids to support...she may then be on very low income.....is that the scenario that she seems coming and has a sense of injustice about???

sorry for the Qs but any advice would be guesswork without this extra info..

best guess for now....

I assume that it is an SM order she is trying to vary upwards...in which case she would have to prove that her needs have increased. If you are fully funding the kids education and they will soon leave for uni..and you will support them financially through uni..then, i don't see how her needs are increasing. In which case her claim will fail.

Does she have a strong case for a variation??? is she ill? has she lost her job?? etc etc
If YES then you need to get the funds to defend the action.

If she is really clutching at straws then you dont need to spend vast amounts responding to her appication. You culd do much of the work yourself and perhaps spend a modest amount to get some fixed cost legal opinion.

  • LittleMrMike
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22 Aug 07 #2264 by LittleMrMike
Reply from LittleMrMike
Well, it's nice to have a post from someone with a happy marriage !

In the old days this sort of thing seemed to happen quite a lot ; ex spouses in receipt of maintenance went back to Court every year for an increase and usually got it, and the payer was left with more to pay and a bill for his ex's costs to add insult to injury. It was as much part of life as the annual trade union wage negotiation. This doesn't seem to happen these days because of the practice of index linking spousal maintenance. The obvious first question is whether the maintenance you are paying is index linked, either directly, or indirectly because it is linked to salary, like child support, so that if your income rises the payments rise in line with it.

Your ex has learned the hard way that applying for a variation in maintenance can rebound on the applicant, and this undoubtedly discourages many applications, unless you can be sure that your case is pretty watertight, as it would be if the payer is retiring.

It may sound obvious but I think you are stuck with the order unless and until it is varied - but the order itself may provide for the payments to cease in certain circumstances, like for example your children attaining majority. I'm not sure if it is good tactics for you to ignore any application your husband's ex might make.

I feel fairly sure that your analysis of the current situation is correct. Once your child support payments drop off, you obviously feel the benefit, and why not ? It will undoubtedly help your case if you have, as you say, kept up the payments, because, let's face it, lots of people pay ducks and drakes with maintenance orders.

I feel pretty sure, madam, that there are provisions in the Court rules which enable a Court to crack down on the occasional crank that one does encounter from time to time. That might, for example, take the form of an order which would prevent your husband's ex making any applications without leave of the Court.
But I must stress, I have been retired for some time, as this old-timey stuff will probably suggest, and my knowledge is years out of date.

There is, however, one worry that I have and it looks something like this. That is, I, like you, think that the name of the game is that you still pay what you pay now, but it goes to her rather than your child(ren). Now it just could be that your husband might have been ordered to pay more, if he could have afforded it.
If his child maintenance payments drop off, she might argue that he can now afford to pay more. Not knowing anything about your circumstances, I can't comment either way. I personally think it would be grossly unfair to your husband if he got no benefit at all from the reduction in his child support. But I can't rule out the possibility that a Court would share the reduction - part to your husband and part to her.

But you can't be the first person in this situation. It must happen all the time. I would have thought that a solicitor experienced in family law would have at least a general idea of how the Courts deals with situations like this.

I'm a bit pressed for time at the moment, but how do you react to this ?

  • googie
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22 Aug 07 #2275 by googie
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Thank you both for your comments. As far as income is concerned--yes my husband does well, not stellar, but well. We have three children between us (2 his, 1 mine) and I pay for my share of my child's education (BTW--my ex and I have a very amicable relationship and arrangement. We share all expenses 50/50 and I have never received one cent of alimony regardless of my work situation. I feel that if I am capable of working then making sure I contribute is part of the deal when you have a child.)I am a part time professor who earns a very modest wage. I am in the process of trying to secure a full time position.

At present we are contributing over 60% of my husband's total income to the ex and the children which leaves us just enough to live but with absolutely no extras. The two children in question are currently in an expensive private school and on gap year respectively. It is my understanding that once they enter university--and will live away from home--the child support maintenance re-routes to them for support at school and tuition. Additionally, I believe that the ex's maintenance continues indefinately--until she marries or expires. I should also mention that in addition to the above, the children visit with us for lengthy stays, a few times a year for which we pay hefty airfare (I should have mentioned earlier we live in the States).

Her circumstances are as follows. This relationship has never been anything but vindictive and bitter. She is university schooled and once had a good career at a discipline that can be just as easily managed from home. She claims to have stopped working in order to raise the children. Apparently she felt the same after they went to school full time. Now she claims to be ill--indeed its been confirmed that she suffers from a stress related condition--and says she can not work (although the courts disagreed with her two years ago). The courts also suggested strongly that she sell the very expensive home she had just purchased, which she has not done (we own a home and a very small cottage--combined the value is still smaller than the value of her house). I have no reason to believe that anything will change as she seems to have settled into a pattern of cashing in on her perceived victimization (we have it in writing that she just received a rather large settlement from someone she sued (we don't know what for)and intends to use it for the sole purpose of dragging us back to court.

Our concern is that this will never end. It seems she is being motivated by anger--in fact we have stacks and stacks of the most vile emails from her--our solicitor is appalled and apparently there is nothing we can do about this legally that can actually be enforced.

We really are at the end of our rope, emotionally and financially. We feel the children are secure in their relationship with their dad and frankly--we just want to tell her to get lost.

I hope this has filled in some of the gaps. Thanks again.

  • LittleMrMike
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22 Aug 07 #2289 by LittleMrMike
Reply from LittleMrMike
Your husband's ex sounds like a most unpleasant character. I think perhaps I may have blown a gasket - old age, I think they call it. If you are still paying the same as you always have, but the payments will be going to the kids and not to her, then your overall maintenance burden has not reduced. If your relative financial positions are the same as they were last time, then the outcome should also be the same. In any event the Court would not make an order which left you with insufficient to meet your reasonable living expenses. I would regard 60% of net income as pretty well at the outer limit of what a Court would be likely to order.

The thought also occurred to me that, if your children are about to fly the nest, the case for her keeping a large house should be weakened.

Good luck

  • Fiona
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22 Aug 07 #2292 by Fiona
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  • googie
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22 Aug 07 #2296 by googie
Reply from googie
Once again thanks for your replies. I like the "vexatious litigant" information. This is something we have not discussed with our solicitor. The idea is to try to avoid court. We believe that it will simply end in a stale mate with both parties having spent thousands. There are not thousands or even hundreds available for this fools errand. We are carrying a substantial amount of debt as it is just to keep everything from going pear shaped and do not want to add to it for the sake of the ex's delusions about our financial situation.

Thanks again!

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