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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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dirorced but want advice re variance

  • wrighty1
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06 Oct 07 #4389 by wrighty1
Topic started by wrighty1
I wonder if anybody can give advice, its ref my partners divorce settlement.(2 children one 15 one 18))
He divorced and settled last nov. He had a bad solicitor and even a barrister..but
she got
The house, the car, 15k to pay off her debts (incured after split) the contents of house, all fees paid. 25% of any overtime.
he pays £500 approx spousal was paying £263.per child cm till 21yr.
Hes a good man ,all this was agreed, solicitor said he had a 50/50 chance if he went to final hearing bad odds so he settled (she would aagree to no less than the above.
He only earns 34k
we have a huge mortgage. he had little or no deposit.
she has now moved 120 miles away with one 15 yr old child
bought a much cheaper house,
has little or no mortgage, yes she works, earns about 15k and thats part time !
the son (18) didnt want to move so is with us now.
its cost £30. twice a month to see the daughter
she now has little outgoing we have excessive
this has all happened since he agreed the Consent Order last nov.
has he a good case to get it varied.
weve had mixed advice and are afraid to get yet another crap solicitor as he is living in debt already and cannot affford to fdo this unless he has a good chance of succeeding.
he only wants fairness..she said from day one all she wants is to ruin him
help advice please.............

  • Sera
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06 Oct 07 #4392 by Sera
Reply from Sera
I'm not a legal advisor. But, the assets are split, and usually a 'Clean Break' granted (re: Finances).

During divorce the 'needs' of each party and the kids are considered. If after divorce, the husband wishes to take on a new mortgage that's his lookout, as his the ex-wifes desicion to start a new life, and reduce her mortgage.

He will be responsible for his children until at least 18. CSA guidelines are 15% first child, 20% second to max of 25% (3 or more kids). Thats % of take-home pay after tax. So you could work out sums.

Your partner may need legal advise if he wishes to reduce any spousal support. At the time this would have been based on her needs, her ability to work etc, etc.

It is quite common that after divorce, a man has to continue support of the first family, and often their are gripes from the second family, (which is understandable). The State does not want to fork-out for the cast-offs and detritus of everyones life, and looks for that financial support from the man.

I know, it's tough! He could seek only to reduce his spousal support. It is of nobodys business if she has down-scaled her life. Emotion does not come into the financial desicion making!

  • LittleMrMike
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06 Oct 07 #4393 by LittleMrMike
Reply from LittleMrMike
The main thing you need to bear in mind with variations is that the Court will look at the whole situation afresh and will make a decision on the facts at the time, so that it is possible, for example to apply a reduction and get an increase instead, or vice versa. The only situations where it is pretty `safe to go for a reduction is where the payer of maintenance retires or loses his job, in which case a variation is essential and the only issue is by how much.

Your second problem is that if your partner agreed to the terms of the order when it was made, I think it is going to be difficult for him to argue that the order was wrong. To use an analogy in another area of law, you can't appeal against a conviction if you pleaded guilty.

The third difficulty is that orders for capital provision, lump sums, are not, as a general rule, capable of variation. There are a few exceptions to this, notably where one of the parties has told lies or concealed facts but to all intents and purposes, the best that your partner can hope for is a reduction in the spousal maintenance. Did your partner's ex, for example, argue she could not get employment, and the order was made partly on that assumption ?

You cannot do anything about child support as such, because this is based on a statutory formula. But if your partner is paying child support on the basis that his ex is looking after two children, and now she is looking after one, then that would suggest to me that a review of the child support is called for. I would try the CSA website where you will find a calculator, and you can check it against what you are paying. If it's too much then you will need to contact the CSA - not very easy from everything I've heard ! - but you should not need to involve the Courts.

I don't want to comment on the settlement you arrived at, or whether you were badly advised, because I don't know the full facts, but when you say your partner's ex ' got the house ' do you mean that she got it outright, or does it mean that she has the right to live there until the children grow up ? It is certainly possible for a house to be awarded to one party, but it would be expected that the dispossessed spouse would be compensated for the loss, which might well take the form of reduction or cancellation in spousal maintenance. If there was to be a deferred sale, did the order say anything about voluntary vacation of the property ?

I am well aware, madam, that in saying this I am going to come across as hard and unsympathetic. Believe me, I'm not. I have been on the wrong end of this too. I just want to point out the difficulties, and to say, with regret, that I couldn't advise you about your chances without the full facts, which I do not have.. I don't want you to incur a large bill for legal costs on a wild goose chase. Let me know if I can assist you further.

Good luck

  • wrighty1
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06 Oct 07 #4394 by wrighty1
Reply from wrighty1
Hi again,
I obviousdly didnt make this perfectly clear.
Its only spousal hr wishes to change.
he loses over half his take home pay to his ex wife he only clears £300 per month after mortgage (he had no house)
She had the house outright
she had house worth £330k he only cleared 12k in capital over everything so a major difference
I accept he agreed but he agreed on the assumtion that "children need to stay together in the matrimonial home. now the 18yr old is with us and the 15yr old was moved 120 miles away.
surely costs of visting should be involved (can we not go to have cm now on csa terms (i read you can get a reduction if one travels miles and incurs a major cost to vist)
She clears in income now 2.5 times more (after tax etc) than he does as hes giving her £500 per month.
she now has little outgoings...shes surely changed everything by upping 120 miles away with the child (in her gcse yr might i add)
surely theres a case here to either dismiss spousal or for a large reduction???????????

  • wrighty1
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06 Oct 07 #4395 by wrighty1
Reply from wrighty1
this was all agreed because the solicitor and barrister both said DO NOt go to a final hearing you only have a 50/50 chance and it could cost 15k (he didnt have it.
HIS ONLY OBjection is spousal maintenance
which at the time he didnt want ot agree too.
she would back down on nothing
sooner ruin him

she works earns 15/16k partime and did then he can no longer earn anything like he did (in police and job changed) little or no overtime
the son lives with us now.. and for 2 months was out of work.
theres something here?????????????????????

  • wrighty1
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06 Oct 07 #4396 by wrighty1
Reply from wrighty1
we are very happy together, hs not backing down on everything hes agreed he simply wants to change spousal as her circumstances have changed as his have (she had 46.6% of his police pension too .
he agreed this I know..
but spousal is ruining him taking him into HUGE debt. he cannot live if we lose the house due to this his son is without a home too.

  • Fiona
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06 Oct 07 #4399 by Fiona
Reply from Fiona
I think you are a bit too near the trees to see the forest

If circumstances have changed and he now earns less, the son no longer lives with his mother and she has downsized there are grounds to seek variation to SM.

I'm afraid no one can give you a definite answer as to the outcome of such an application.

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