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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.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


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Housing quandary

  • MDCM
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05 Jul 12 #341395 by MDCM
Topic started by MDCM
I have been um-ing and ah-ing which section to put this in for a while, and as it does involve a property i am going to try here. Please correct me if i am wrong.

I live in the FMH with my 3 kids. We are at the point of awaiting for Nisi to be read, so all being well financial matters Will be addressed soon.

My solicitor has advised me that as a single mum on benefits i have no option but to go for a Clean Break, as ex already doesn''t pay Child Support, so there is no way he Will agree to paying for me to remain in the property.

Now my issue is, that in the knowledge of this, i have come across the most perfect of rental properties, which would mean the only disruption to my kids being the actual move. They could stay in school, stay with their friends, clubs etc.

Now is it possible to put the house on the market b4 nisi? I would want an agreement made up that if i move into the rental property, that my ex won''t move into it and it is marketed as vacant possession.

I need this in place as if he lived in it, DWP told me i Will lose my Income Support of £71 a week, but if house is vacant and they can regularly check its vacant, plus i can show them evidence that effort is being made to sell, i can keep this and survive (i am eligible for Housing Benefit for the rental property)

Can such an agreement be made?

Thanks in advance :-)

  • LittleMrMike
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05 Jul 12 #341407 by LittleMrMike
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You won''t thank me, but here goes.

First reaction.
Whose name is the former marital home in ? Is it in joint names, or in the sole name of one of you ?
Next. If you move out you lose the Income Support. I have assumed there is a mortgage. If there is nobody to pay the mortgage, do you not run the risk of repossession if it doesn''t sell ? Why would your husband want to pay the mortgage on a house if he is not living there in addition to his normal housing costs ?
You say you want to stop him moving in, but how can you prevent this if he is a joint owner ?
Could he not argue that you have a home now, so he should have the right to live in the former marital home ?
Have you considered what might happen if he moves in and stays put ? You realise, do you not, that in such circumstances the fact that you had a half share would disqualify you from housing benefit because, in the nature of the case, nobody would be making any effort to sell it ?
And you realise ( I''m not 100% sure about this, it''s a long time since I did housing benefit ) but I am pretty sure there is a time limit for selling the house, and after that limit has expired your half share could count against you. In a sluggish market this is a real risk.
I think this is a very bad idea, and my advice, to be crude, is forget it.
Sorry.
LMM

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05 Jul 12 #341411 by MDCM
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Hi LMM
Thanks for your response, and your advice, crude or otherwise, is greatly appreciated.

With regards to Housing Benefit, it was then that advised me that i am able to claim this whilst FMH was on the market. Same goes for the Income Support from DWP. They advised me that so long as the house is marketed as vacant possession, then my claim can remain in place, at the discretion of the Decisions team, on production of hard evidence of attempting to sell (contract with estate agent, solicitors letter, and regular access for them to the property to inspect whether vacant or not)

With regards to getting ex to pay, i think i may have mislead you slightly there. I omitted that he pays half the mortgage at the moment, as do i. This situation would remain in place if any such agreement could be made till house sold.

I gather by your response this is an agreement that you have not come across previously? It sounded peculiar to me also, which is why i thought maybe someone here could shed some light on this. I wonder why DWP Would tell me to do this.

Thank you anyway. Whether it be an answer i want to hear or not, all advice is good advice.

:-)

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05 Jul 12 #341417 by LittleMrMike
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I think what the DWP have said is broadly correct. Your house, or your share in the house, is not counted as capital as long as you live there. It can also be disregarded for a period ( I''m not too sure what it is but 6/9 months seems to be floating around in my head ) and there is power to extend that period, so what the DWP have told you fits in with mt broad recollection.

I have some serious reservations about the wisdom of what you are proposing but a CAB should tell you what the current rules are. I have not done CAB for years and, although I have one virtually on the back door, I have no desire to volunteer my services again. I''m probably too old anyway, but my brain still ticks over fairly well even at 72''ish.

If your husband is prepared to agree the terms of a financial settlement, if those terms cannot be incorporated in a Court order made by consent, you are on safer ground. This cannot be made before Decree Nisi and I think it can''t take effect till Decree Absolute, but we have had an interesting argument in these forums about that.

I still think there is a risk that, if you move into the rented property, it could have a bearing on the financial settlement. I have come across the same situation the other way round when it''s the man who leaves prematurely.

However it is late and my brain is getting addled ( yawn !!! ) and so to bed and we''ll think more about it later.

LMM

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06 Jul 12 #341474 by cookie2
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MDCM wrote:

My solicitor has advised me that as a single mum on benefits i have no option but to go for a Clean Break, as ex already doesn''t pay Child Support, so there is no way he Will agree to paying for me to remain in the property.

Hmm, I think either you''ve been given bad advice, or you have misunderstood.

Why does your ex not pay CM? Have you been to the CSA and asked them to collect from the source on your behalf?

If a court orders him to pay spousal maintenance then it does not matter whether he "agrees" to pay, he will have to pay otherwise face more court action and a costs claim.

Normally you would only give him a Clean Break if there was some kind of capitalization of maintenance. Meaning, you get a bigger chunk of equity from the house in lieu of ongoing monthly payments. However capitalization of maintenance is something your ex would need to agree to, a court doesn''t enforce this very often. These is certainly not "no option" here.

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06 Jul 12 #341490 by MDCM
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Cookie, thanks for replying.

My ex doesn''t pay maintenance at the moment as he choses not to. At the moment he pays his half of the mortgage, but if i go via the CSA route he Will stop doing this, the CM being used to pay it instead. Please don''t misunderstand that i am after full CM as well as his mortgage half, as i know that it should be one or the other. I have asked him to contribute an extra 150 on top of what he pays to equal the CSA Figure, but this he objects to.

He has also advised that should i go down the CSA route he Will put himself out of work, then be unable to be able to pay either. I cannot afford mortgage on my own, house would have to be reoppressed or sold. His credit rating is abysmal so the thought on this is not a problem to him.

There is virtually no equity in the house, and once agent and solicitor sale fees paid, we shall be lucky to have 1000 to share between us, in whatever proportions.

I have again had a discussion with DWP INcome Support Mortgage section, who have advised that all benefits Will stay in place, aside from mortgage assistance, should i move into rented accommodation and tho property remains vacant.
Housing Benefit have also confirmed i can claim for the rental property in the same circumstances.

I am so confused. I am not a stupid person by any means, but my brain is addled with all this stress :-(

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06 Jul 12 #341496 by cookie2
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MDCM wrote:

I have asked him to contribute an extra 150 on top of what he pays to equal the CSA Figure, but this he objects to.

Then you would be better off going to the CSA. They will make him pay the CSA figure. Even if this means he stops paying the mortgage, you would be getting cash money instead, so you would be £150 a month better off - right?

He has also advised that should i go down the CSA route he Will put himself out of work

Oh if I had a pound every time I''d heard that, then I would be a very rich man. Really, he would remove his entire income source and live on bread and water just to avoid his responsibilities? He is aware that if he quits a perfectly good job for no reason, he will not get any benefits, so he will have NOTHING to live on? That is not only cutting off his nose to spite his face, it is cutting off his entire head. A lot of men use this threat just to get their way but when push comes to shove they never go through with it. In fact I have never heard of a single case where the man has actually quit his job in order to avoid child maintenance. This is a completely empty threat.

I would tell him that you want him to pay the CSA figure, otherwise you will go to the CSA, and if you do then you will also be applying for back-payments for the last 12 months (if he''s been under-paying by £150 a month then that is £1800). That should knock some sense into him.


I don''t know much about benefits I''m afraid. But for the reasons LMM states, I would not move out until you have a Consent Order in place.

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