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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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Legal Assistance

  • JustH
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04 Sep 07 #2859 by JustH
Topic started by JustH
Hi,

My husband of 21 years left 3 months ago. We have 2 kids 20 and 14. The 20 year old lives away, but the 14 year old has stayed with me in the FH.

Hubby earns 70,000 plus per year and has built his career whist I stayed at home for the kids whilst he was working away etc. We married at 21/22 respectively having both left school after A levels and working for the same company. The agreement was that I should raise the kids and he would build the income. I gave up a good career to do this.

I am nw 42 and feel completely on the shelf and starting from scratch. My Dad had a stroke last year and is in a wheelchair, and being the only child, the pressure there is also enormous as my Mother is also very dependent on me.

My point is, I am new to benefits, but have now contacted the relevant departments, and am now receiving child tax credits. My husband pays me 100 per week, but have not contacted CSA as he is still paying bills on house and scared to rock the boat.

I want to return to work, but have just been awarded Legal Assistance, have to pay some each month, the total will be paid on settlement as it will be substantial, so is really a loan.

I am terrified thst, if I take a job which has been offered- care work with good training- that the Legal Help people will take it all off me or I won't be entitled to it at all.

He has a solcitor who is well known and scares the hell out of me- so what do I do- how do I check quickly before accepting the job or not, whether it will go in my favour or be worth it.

I really want to move forward and make a life for myself, but feel in complete limbo and controlled by the system- does this make sense

  • LittleMrMike
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04 Sep 07 #2862 by LittleMrMike
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It is a pretty general principle of benefits law that, if your circumstances change, you are obliged to notify the relevant authorities so that your entitlement can be re-assessed. I suspect that applies to Legal Assistance as much as it applies to anything else. I think a phone call to a CAB would confirm whether this is accurate.

There is another matter you need to consider. If you are offered a job and refuse it, would it not be open to your husband to use your refusal as an argument to reduce your spousal maintenance ? I know I am playing devils advocate, but if I am don't make the point, someone else might.

My initial impression is that your case is a strong one. The fact that you have a dependent child and that your husband is a high earner, and you gave up work to care for the children is pretty well four square with the recent House of Lords decision in McFarlane, where the wife was awarded enhanced maintenance for giving up a career to raise the children. I feel this would go in your favour, as would the disparity in your respective incomes. I would not regard it as beyond the bounds of possibility that you might be given the right to occupy the home till re-marriage, death, or voluntary vacation - ie you get a home for life and would not necessarily have to sell it when the youngest child reaches 18. You are right that legal aid is just a loan, but I assume you know that in cirtain circumstances, repayment of the statutory charge can be deferred ?

Have you, by the way, considered a claim for DLA/Attendance Allowance for your parents ?

Unfortunately, your case raises an issue which is a major concern for me, and for most posters on this site, namely, the position of the claimant ( and yes, also the potential payer as well ) who is not considered sufficiently impecunious to justify legal assistance but who can't really afford to fight a case through court.

I would like to have a Big Think about your case and possibly send you a PM, but it might be a day or two before I can comment in detail

Mike

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04 Sep 07 #2863 by JustH
Reply from JustH
Mike,

Thank You

Of cousre I know that I have to tell benefits anything that changes- scares the hell out of me not to- brought up to be English and honest.

He (hubby) doesn't know about job applications and no need to. He assumes he has made me unemployable (which he nearly has)- his bullying control-the night he left he was arrested for assault, but I still blame myself

As for a PM, please Mike, would really appreciate it

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04 Sep 07 #2864 by JustH
Reply from JustH
Mike,
Have googled the case you talk about

Would realy help me to have the facts, please direct me as can't find

Helen

  • jasmine
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04 Sep 07 #2865 by jasmine
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The legal aid service has a strict criteria for calculating whether you are entitled to legal aid or not. If you start proceedings and then your earnings go over this limit the legal aid is withdrawn and you have the option to pay the solicitor at full hourly rate or represent yourself.
Out of your total income received including voluntary child maintenance. any benefits and child benefits . You can take of the income tax Ni housing costs and for two dependant children you are allowed £395.93. after these are deducted if you have disposable income over approx 672.00 the legal aid is withdrawn. The 672.00 . If you go on their website there is an approx calculator you could use.
I am in this posistion. When my ex filed for divorce I got legal aid. Because the tax credits went up my disposable income went to 680.00 and the legal aid was stopped.
My solicitor gave me the option to continue to use their services at £189.00 per hour or represent myself.

  • DandyHighwayMan
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04 Sep 07 #2867 by DandyHighwayMan
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Hi Jasmine,

When you say that if your earnings go over a certain limit the funding is withdrawn as Legal Aid criteria is very strict, how does this work in practice?

Do you tell your solicitor your income has increased and they then tell Legal Aid who in turn withdraw funding? Is the onus on you to disclose or does the solicitor do the checking throughout the time they are representing you?

You have got me thinking.........

What if someone earned the lower amount to qualify for Legal Aid, but you knew that they had some cash hidden, which they spent as soon as Legal Aid was awarded, thereby never disclosing it to the solicitor as it was "now all spent", thereby allowing Legal Aid to continue?

I have read several articles on the CLS website and it refers to the fact that if savings/cash assets are available they should be used in the first instance to fund the legal service rather than obtaining the funding certificate from them first.

Can anyone advise if this is correct or have I read it all wrong?

Thanks

  • LittleMrMike
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04 Sep 07 #2868 by LittleMrMike
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Helen,

I think I would try using the keywords House of Lords + Miller + McFarlane + Judgement + UK and that seems to work for me.

The Miller case has little to do with your situation. The case of McFarlane involved the wife, who was a high flying solicitor, giving up her career to look after the kids, rather than employing nannies, which is what quite a few people in that position do. The marriage broke down when the youngest child was 9. The only issue was how much the husband ( a partner in Deloittes ) should pay by way of spousal maintenance and for how long. But the Court did make much of the fact that the wife has given up a lucrative career to enable the husband to concentrate on making money.

If you can get the case, you need to read the first judgment, delivered by Lord Nicholls. You may see why I thought it might be of relevance in your case. It's quite long and I'm afraid I find problems wrapping my head round it.

Good luck, your head might be spinning before the night's out !!

Mike

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