Clean Break Question

I have a question but I know that some background is needed in order for people to answer so here goes, the question comes at the end!

My ex does not want a divorce – he sees no need for one as he does not intend to remarry or have any more children! However there is a need to sort out the finances, the FH is up for sale as we cannot afford to run that and the flat which he started renting 6 weeks after leaving. We are both agreed that we want a Clean Break and after many emails have reached an agreement between ourselves.

Briefly put he is 52, I am 50, we have been married for 29 years, together for 33. For many years I did not work as I stayed home to look after our 3 children. They are now 24, 23 and 19. The younger two still live with me and intend to carry on doing so. He earns double my salary, he has a small pension and a few shares, I have neither.

The agreement we have come to is that after the house is sold and the mortgage paid off along with all loans, credit card debts etc I get all the remaining money which is likely to be in the region of £135,000. I will give up all rights to his pension, shares and any spousal maintenance I am entitled to. In terms of possessions his car and many push bikes we consider equal in value to my car there isn’t really anything else of value.

My feeling having read various posts on the forum is that this is in fact quite generous in my favour and more than I am likely to be entitled to.

Although I won’t be able to afford to rent or pay for a mortgage I hope to be able to buy and run a small place with the money I will get so that I can provide a home for our boys but I don’t want the risk that he can claim any part of it later on. He was never good with managing money, I suspect this hasn’t changed so although he will have a large salary to live on with no debts and no financial commitments to either his family or me, in fact will be in a position where he could save vast amounts of money each month, I wouldn’t put it past him to still get into financial trouble.

It may well be that at some stage I want to divorce him but right now I am not ready to go there.

So the question, two parts to it really;

Does this settlement seem reasonable?

What do I need to do to make this a legally binding settlement which cannot be changed should we divorce in the future? Is this in fact possible?

Dees, you can have a Separation Agreement drawn up by a solicitor. It won''t be legally binding like a court order but as long as you have both taken legal advice and it is fair, it would form the basis of settlement on divorce.

As to whether what is being suggested is fair, it is not possible to say without more detail. If you can give us some figures for salaries, debts etc that would help. Also how would your husband house himself ? Are the debts joint .... Or has the money been spent for his sole benefit? You say your children are adult. Are they working or at uni?

Hadenoughnow

Thanks Hadenoughnow,

Salaries are £55k, (he may have had a payrise given we are talking about a year ago now) and £24k.
Credit cards are in his name, I was a card holder but he has removed this. Other loans and mortgage are joint.

The £135k is after all these are paid off, we would not owe a penny to anyone. The exception being anything he has put on the credit card since he left which he has agreed to.

As to how he would house hiself he already does. He rents a place - his choice, I didn''t get a say in who would live where and how etc. Less than a month after leaving he had opened a separate bank account, (something we had never had), and had his salary paid into it. Since then he has without fail paid money into the joint account each month, an amount of his choosing but just about enough for me to be able to cover the costs of our mortgage, loans one of the credit cards, (he now pays the other one from his bank account) and to run the place.

I think he is able to afford this as he and the OW, (who is unemployed with 4 kids), have had several weekends away, holidays, meals out etc.

My 23 year old does freelance contract work which is sporadic and the 19 year old has recently got a full time job in a supermarket though he does hope to go to Uni in the near future. We had a comfortable enough lifestyle that we never had to ask our children to contribute and I feel bad that they have to now. They never had to suffer going without things like heating before but they do now. They too have had to change/alter their plans for the future because of this. Unfortunately I realise that this is largely irrelevant when considering the settlement.

Hope this is enough info.

''fair'' is perception. Are you happy with his proposal? If so why ask other people''s opionions?

At 23 and 19 your children are not children anymore and while they may not have a big income they definitely have enough to contribute towards the running of the house, like paying electric bills or gas bils- so they dont have to go without things like ''heat''.

I dont understand what the problem is? You say he is covering the mortgage (for the house he is not living in) as well as the joint debt?

If you turn this on the flipside- he has an OW (unemployed) with 4 kids (you didnt say ages)

You have a household with 3 adults which could contribute- surely you are in teh stronger position in regards to income?

Dont get caught up with what otehr people say you are entitled to or is fair. If you have done your sums and are happy with what is on offer than go for it. Otherwise you can be dragged into the fun of court and the outcome may be very different from the one people said you would experience.

I am happy with the proposal, my worry is that it is too heavily biased in my favour and that should I chose to divorce him later it could be taken away from me.

Dees

Why not take theopportunity to see a solicitor for a free half hour consultation, it will cost you nothing and if you take all the information you can the time will be used well.

As for OW and her children he does not have any obligation to provide for them so they will not be factored into the equation. Don''t give them a second thought, this is between your husband and you and you deserve the best deal you can get.

Think of you and your family only. Good luck.

Dees

My concern here is that you have an agreement which would stand up if and when you do get round to a divorce and financial settlement. Court is definitely to be avoided but if the agreement cannot be translated into a Consent Order that will be agreed by a judge, you could end up with problems in future. Of course you could just stay separated forever ... or divorce without a legally binding agreement. That is your choice but a legally binding agreement does protect you both.

NB AFAIK if you do not divorce, you would still be his widow if he died .. and would be eligible for widow''s pension. I would always suggest that if divorce is inevitable, it is best to get it over with sooner rather than later. You can divorce him now using mild UB grounds, wait two years for a divorce by mutual consent OR five years if he does not consent.

Bear in mind that the courts in England and Wales look at needs and assets on divorce and not separation. If you wait a long time to divorce, his pension pot will have been building .. He could also claim a share of your property later ... depending on his level of assets on divorce.

At 50 with a salary of 24k you would be able to get a small mortgage ... you need to check exactly how much in order to work out what you can spend on a property... and also need to be aware of running costs.

He too would be able to get a mortgage but would need a deposit if he wanted to buy.He has shares - how much are these worth? Could this be a deposit for a one bed flat which is his strict need?

Paying off all the debts would be a great help in terms of living costs. I agree that the adult children who are working should contribute - even if it is only a small amount.

If your youngest does decide to go to university, he may be eligible for some financial support with fees etc because of your income.

In effect, if you have all the available equity then it could be seen as part your "share" of the property and part capitalisation of SM with no further claim .. and offsetting the value of his pension.

It is unusual for one party to have all the equity ... but how "fair" that is does depend on the value of his shares etc which are part of the marital "cash pot" ... and the size of his pension CETV.

You do really need to know these before agreeing ... because as things stand you would be able to claim a good share of the pension (on divorce) and you need to be able to decide if this is worth more to you in the long run than the equity.

As he has a much higher income - it is indeed double yours - he is in a better position to recover financially .. and no ongoing SM would help.Of course, instead of saving, he could just spend the lot ..

His life choices - ie OW with 4 children - are not your responsibility. His first family - ie you - should not suffer financially because of this.

I suggest you think very seriously about whether a Separation Agreement is appropriate or whether you both would be better to divorce and have a legally binding settlement.

Hadenoughnow