We have a house worth £300K and only a £50K Mortgage, my wife wants to keep the house, but she will not be able to buy me out due to mortgage required... I want to sell and split 60/40% what are the chances the courts would allow her to stay and me get nothing?
I also have 2 boys aged 3 and 7, and I take home £1800 PCM, what is most likely maintainance?
Dan. There are a number of factors that have to be considered.
1. Is you wife the children's main carer?
2. Could you sell the house and both buy houses locally and have enough room for the children.
If the answers to the above are Yes and No then she will be allowed to stay in the house and there may be an agreement called a Mesher agreement where you agree what %age split of the house will be yours and hers, but you won't be able to get your equity from the house until one of a number of 'triggers' has happened. The triggers are normally co-habitation by ex, youngest turns 18, your ex dies, she moves or she is bankrupt. So you can't get your money out and if she is the main carer, you will be paying her child maintenance (CM) of 20% of your net income after tx, NI and pension and you may have to pay her Spousal Maintenance (SM) so she can look after the children and not have to go out to work until they are older.
So CM is going to be £83 per week less 1/7th for every night of the week you have them to stay overnight.
SM has no set formula and is based on her need to have a similart lifestyle as she has enjoyed before.
The usual rules are that CM and SM together are not more than one third of your net monthly salary but different courts do different things.
Try and negotiate with her and avoid court - it is very stressful and very expensive.
1. yes she would be the main carer, although we share heavily due to her working shifts and I would be prepared to do this still after divorce.
2. We could sell house and buy a 3 bed each with more than enough room but would need around a £50K mortgage each in total.
She has expressed interest in settling out of court, but then if she wants house I can't let that happen if possible, or I will never get a start again.
I am happy to pay CM as I love my children but SM really sucks, does this happen that often? I thought i was only in USA, she will be able to work for sure, although if she kept this house she wouldnt not be able to afford bills as a big 5 bed in a good area etc.
One friend has said best route is probably go for legal seperation, then straight mediation and agree, even if it meant I gave 40/60% to her I would go for that, if we agreed in mediation, can this be signed, sealed and never changed??????
Monitor 441 is right in his previous post and as your ex will be main carer & it appears already that she wants to stay in FMH, then it could prove difficult for you.
If you can at all go the mediation route for settlement of this as it is cheaper and less emotional or stressful for all concerned. However, I have a feeling that when she talks to family, friends, solicitor it may go a different way because she wants to keep the house and she may well be able to mamange that.
The whole point of spousal maintenace is for the PWC's needs to be met by the NPWC following separation/divorce. This is you meeting her needs. She may well of course be able to meet her own needs in a smaller house as you say, but if she wants to stay in the one she's in you may have an uphill struggle.
She may argue that by stayin in the FMH its less stress for her and the children. She may say that the divorce is stress and upset enough without making them move home as well. Threfore if say for example she needed £2000pm to stay in house and only had £1500pm, then they may look to you to pay £500 sm to make the shortfall so she can stay there.
Of course you also have a good argument that you share the care of the kids this will be aken nto account in any CM calculation, however may not be so in SM calculation. She may show that you have X disposable income now you are no longer in the FMH, but of course you have to house yourself somewhere in the menatime and that has to be somewhere suitbale for your children also.
She may wish to trade off the SM and take a bigger share in the equity of the house, but given the ages of the children I doubt her solicitor would advise that.
The problem with this new "alimony" culture we have now in the country, it does not seem to encourage financial independance of each other following divorce even when it is possible. It seems to be that everyone is "jumping on the band wagon " to claim it just because they can. The PWC may grossly exaggerate their level of "needs" in order to achieve a SM decision. Of course this is not in 100% of cases and there are obviously geniune desperate PWC's needing this to survive.
The majority of SM claims ( I beleive) now appear to be open ended rather than in place for x number of years
Please please try and keep her going down the sensible amicable route and hopefully you can reach an agreement through mediation.
Hope this makes things a bit clearer, have you sought any legal advice?, although this site is as near to the real thing in terms of experience/likely outcomes.
Sorry about the typo's in prev post
Forgot to mention, that if she is working, she would of course be eligible for child tax and working tax credit to boost her income.
These benefits would be taken into account when needing to show "who has what" coming in each month.
I think given your level of earnings any spousal maintenance awarded would be minimal, if any. A more likey scenario is 'nominal' SM when a nominal amount, say Â£10 a year, is paid so that there is an order in place which may be varied should circumstances change in the future. This is to protect your family should your wife hit hard times in the future and be unable to work.
If your wife currently earns a third of joint earnings and receives CB, tax credits and child maintenance she may well have more income than you.
As far as the capital settlement is concerned the priority is for the children to be adequately housed. If this can be achieved in your area with a 60:40 split in her favour all well and good, if not the division could be 70:30, 80:20 or more. Or as M441 said there is the possibility of a Mesher when your interest in the FMH is retained as a charge against the property usually until the youngest child reaches 18, your wife cohabits or remarries.
Follow up to prev post, there is no set formula for SM.
The starting point of this is a "nominal" amount per year.
However, it can be set to a larger amount per month, on an open ended basis.
This has been in cases where the PWC does not work or has limited income due to working less as main carer for the chldren.
If there are no children, it can still be awarded to an ex who has not worked druing the marriage or is unable to support themselves financially independently from the working ex.
There are posts on here from guys (and a gal i recall)paying it for life, or til eldest child reaches X or to date when xspouse is expected to be able to meet her own needs, along with the marrigae/cohabitation/death scenario.
When it is set to more than the nominal amount, BOTH parties can request (through court) a variance should financial circumstances change for either.
Needs based cases heavily carry the possibility of SM larger than the nominal award.
The courts main aim is to reach the fairest split for BOTH parties, and if at all possible in doing that, rehousing both parties. The PWC housing and income needs are a priority over the NPWC.
None of us posting on here can predict, none of us are judges. It all comes down to the judge on the day, or if not at court, the reasonability of you both.
We are all giving our own opinion based on our own circumtances. Everyone's are different.
This is alot to take in given your circumstances.
I read from your other post that divorce is only a possibility. I hope that you can work your differences out and stay happily married, I really do.
If it does come to divorce, as posted earlier, please try and go the easy way to it rather than the hard way.