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Advice wanted please, we're talking divorce :(

(87 Posts)
ChangeAfoot Tue 30-Oct-12 11:35:33

Feeling nervous about posting at all about this - have name-changed for the occasion.

H and I are discussing divorce. He tells me that "what would happen" were we to split is that we would sell the family home, both buy flats capable of housing our two children (both pre-school age), and then have shared custody. He very much wants shared custody; I do not. At the moment there is a sizeable chunk of equity in the house, we have been married 3 years; together for 10. I haven't worked since the children were born (we moved abroad when I was pregnant for his work and have only recently returned). I am very keen to get back to work but being realistic this will have to be in a new area or at a much lower level - my work is completely unworkable with children as I often worked away from home and doing crazy hours (freelance).

THe house is not in my name, it was bought using some money H received.

My two main fears are that he stands a chance of getting joint custody, and that we would have to sell the house and get two flats. I know I need to go and see a family lawyer, am going to set about researching and making an appointment. But in the meantime can someone shed light on what might happen in this instance? He's a hands-on dad but has always worked full-time and frankly hasn't ever bought an item of clothing and barely made them a meal since they were born... hmm... will I lose my kids to this extent? sad

STIDW Tue 30-Oct-12 12:15:41

The terms "custody" and "access were replaced with "residence" and contact in the UK many years ago. Parental Responsibility means both parents have equal responsibility and rights to carry out those responsibilities. Residence determines where a child lives.

Practically shared residence isn't that different from the more traditional residence/contact. Shared residence doesn't have to an equal split of time 50:50, it can be in different proportions and it's important to clarify what your husband means by shared custody.

As far as finances are concerned each case depends on the particular facts. The welfare of children, in particular meeting their needs for housing is a priority but if the former matrimonial home is more than adequate it may need to be sold to enable both parents to rehouse somewhere suitable for the children to stay.

STIDW Tue 30-Oct-12 12:21:20

PS The value of assets held in joint or sole names forms the matrimonial "pot" to be shared so it doesn't matter that the house isn't in your name although you (or a solicitor on your behalf) will need to register your home rights with the Land Registry so the property can't be sold until you have a financial settlement.

ChangeAfoot Tue 30-Oct-12 12:22:57

Thank you very much for your reply and for the clarifications.

By shared custody he means something approaching a 50:50 split. He said he envisaged a scenario where we would both work full time, and the children would be in FT childcare but residing with both of us equally.

Financially, staying in the marital home is actually probably the most economical, although he says we would "have" to split our assets at the time of divorce so it doesn't matter. He has a high income; our mortgage is very cheap here and it's a very good investment for the long term.

I feel very lost with it all, definitely need to seek advice.

STIDW Tue 30-Oct-12 12:38:37

Children's sense of security and established bonds are important and the biggest obstacle to separated parents sharing care 50:50 is the absence of shared care 50:50 before separation. A substantial amount of contact/shared residence would be appropriate for a hands-on dad, but it doesn't have to be 50:50 shared care.

Above all arrangements for children need to be practical. There is no point in a parent insisting children stay with them if they are at work and would need childcare when the other parent is available to care for them. Even when children are in school or child care someone needs to be responsible for them if the school is closed, the child minder is sick or the children become ill.

blibbleflop Tue 30-Oct-12 13:07:51

My usual disclaimer: IANAL so take my advice with a pinch of salt.

Leaving the residence/contact issues aside for a moment. What is the equity:mortgage balance like on the property as it stands, do you have a big mortgage with a small to moderate amount of equity or a small mortgage with a large amount of equity?

Following a divorce your STBXH is going to have to house himself in a manner that allows for himself and a place for the children to stay during contact (or residence), he will find it difficult to get a mortgage on a new property with his name on the mortgage for the marital house and with little or no capital for a deposit. Is there enough capital in other martital assets to offset the equity in the home, such that he could take cash/shares and you could keep the house? If 95% of the marital assets are tied up in the house there's a good chance you would have to buy him out or sell.

You've said your STBXH wants joint residence but you do not. Realising that it would be unlikely to be in the 50:50 region it could still be an option in the 70:30 region, what makes you so against the idea?

ChangeAfoot Tue 30-Oct-12 13:19:02

Thanks again for these replies; it's much appreciated. I will be back later with more detail. smile

babybarrister Tue 30-Oct-12 13:51:43

Go on to the resolution website to find yourself an expert family lawyer and do it sooner rather than later as you need to understand your position properlysmile

ChangeAfoot Tue 30-Oct-12 14:09:23

Will do babyb - thank you.

bibble - to answer your questions. We have approx 350k of equity and the same again of mortgage. We own another flat with approx 70k of equity (mortgage in my name only but this is a studio flat so not appropriate for either of our residence post a split) and he owns a couple of BTL places at the other end of the country which probably have about another 100k equity total but almost no mortgage. (Sorry that's probably far too much info; writing it down for my own benefit as much as anything else!)

To answer your other question I would probably be happy with something more like a 70:30 split although even this breaks my heart to consider. But I guess this is the landscape of divorce.

We are still considering trying relationship counselling - again- but in my heart I just can't see things improving. Sadly we are both very good at sticking with the relationship because we want to make it work and I think both of us find it very difficult to say that it's finally over.

ChangeAfoot Tue 30-Oct-12 21:14:38

More depressing conversations this evening. He is adamant that it is the preferred solution "nowadays" for there to be a 50:50 split of contact between parents.

At the moment he isn't working so we are both looking after the children (well, I say that - but I still do all meals and the boring stuff like doctor's appointments, dropping at nursery, clothes buying, etc etc). This has only been for the past two months however, and before that he has pretty consistently worked long hours, 5 days a week.

He is now extremely angry that I have suggested it might not be a 50:50 split, or that I would not want that. He thinks that means I'm not being fair.

Sigh. We haven't even started down this road and it already feels like a minefield.

MOSagain Wed 31-Oct-12 13:33:36

changeafoot, taking my lawyers hat off, in laymans terms, he is talking bollocks. Of course he is saying what he wants to believe and what he wants you to believe.
He clearly has not been to see a lawyer or he would know that it is not always, or mostly a 50/50 split nowadays. I'm wondering if he is so insistent that it is a 50/50 for financial reasons? (ie so you wouldn't get a larger share of the matrimonial pot if you were the main carer of the children)

You really do both need to instruct solicitors. Have a look at the Resolution website to find a good family lawyer in your area.

olgaga Thu 01-Nov-12 00:04:29

Don't be downhearted or intimidated by his response. You might find it worthwhile to do some background reading:

Relationship Breakdown and Divorce – Advice and Links

It is useful if you can get to grips with the language of family law and procedure, and get an understanding of your rights, BEFORE you see a solicitor. If you are well prepared you will save time and money.

Children

If there are children involved, their welfare, needs and interests are paramount. Parents have responsibilities, not rights, in this regard. Shared residence means both parties having an equal interest in the upbringing of the children. It does not mean equal (50/50) parenting time - children are not possessions to be “fairly” divided between separating parents.

A divorce will not be granted where children are involved unless there are agreed arrangements for finance, and care of the children (“Statement of Arrangements for Children”). It is obviously quicker and cheaper if this can be agreed but if there is no agreement, the Court will make an Order - “Residence and Contact” regarding children, “Financial Order” or “Ancillary Relief” in the case of Finance. Information and links to these can be found in the Directgov link below. Residence and Contact Orders are likely to be renamed Child Arrangements Orders in future.

Always see a specialist family lawyer!

Get word of mouth recommendations for family lawyers in your area if possible. If you have children at school, ask mums you are friendly with if they know of anyone who can make a recommendation in your area. These days there are few people who don’t know of anyone who has been through a divorce or separation – there’s a lot of knowledge and support out there!

Many family lawyers will offer the first half hour consultation free. Make use of this. Don’t just stick with the first lawyer you find – shop around and find someone you feel comfortable with. You may be in for a long haul, so it helps if you can find a solicitor you’re happy with.

If you can’t find any local recommendations, always see a solicitor who specialises in Family Law.

If you take legal action to protect yourself or your family from domestic violence, you may qualify for legal aid without having to meet the normal financial conditions. The income of an abusive partner will not be taken into account when deciding whether you qualify for legal aid.

You can also find out about Legal Aid and get advice on the Community Legal Advice Helpline on 08345 345 4 345
www.direct.gov.uk/en/Dl1/Directories/UsefulContactsByCategory/Governmentcitizensandrightscontacts/DG_195356

Or search in your area for Community Legal Advisors:
legaladviserfinder.justice.gov.uk/AdviserSearch.do

Co-operative Legal Services offer DIY/Self-Help Divorce packages, as well as a Managed Divorce service. Their fee structure is more transparent and they have a telephone advice line as well as offering really good advice on their website:
www.co-operative.coop/legalservices/family-and-relationships/

You can read advice and search by area for a family lawyer here:
www.resolution.org.uk/

You will also read good advice and find a family lawyer here:
www.divorceaid.co.uk/

Some family law solicitors publish online feedback from clients – Google solicitors to see if you can find any recommendations or feedback.

Mediation

You will be encouraged to attend mediation. This can help by encouraging discussion about arrangements for children and finance in a structured way in a neutral setting. However, it only works if both parties are willing to reach agreement.

If there has been violence or emotional abuse, discuss this with your solicitor first. Always get legal advice, or at the very least make sure you are aware of your legal rights, before you begin mediation. This is important because while a Mediator should have knowledge of family law, and will often explain family law, they are not there to give tailored legal advice to either party - so it’s important to have that first.

Married or Living Together?

This is a key question, because if you are married, generally speaking you have greater protection when a relationship breaks down.

Legal Issues around marriage/cohabitation and relationship breakdown are explained here:
www.adviceguide.org.uk/england/relationships_e/relationships_living_together_marriage_and_civil_partnership_e/living_together_and_marriage_legal_differences.htm#Ending_a_relationship

www.advicenow.org.uk/living-together/

DirectGov advice on divorce, separation and relationship breakdown:
www.direct.gov.uk/en/Governmentcitizensandrights/Divorceseparationandrelationshipbreakdown/index.htm

Legal Rights and issues around contact are further explained here:
www.rightsofwomen.org.uk/legal.php#children_relationship_breakdown
www.maypole.org.uk/

I found these guides from law firms quite informative and easy to read – there are others of course:

www.family-lawfirm.co.uk/uploaded/documents/Surviving-Family-Conflict-and-Divorce---2nd-edition.pdf

www.terry.co.uk/hindex.html

Finance

Before you see a family law solicitor, get hold of every single piece of financial information you have access to, and take copies or make notes. Wage slips, P60s, tax returns, employment contracts, pensions and other statements – savings, current account and mortgages, deeds, rental leases, utility bills, council tax bills, credit statements. Are there joint assets such as a home, pensions, savings, shares?

If you have no access to financial information, or you are aware that assets are being hidden from you, then obviously you will not be able to reach agreement on finances. If there are children, as you cannot divorce without adequate arrangements being agreed on finance and children, you will have to apply for a financial order anyway. If there are no children, and you are unable to agree on finances, you will also have to apply for a financial order (follow the Direct.gov links below). This seeks financial information from both parties going back 12 months. So it is in your interests to act quickly once you have made the decision to divorce.

If you are married, the main considerations of the Family Courts where parties are unable to agree a settlement are (in no particular order of priority):

1.The welfare of any minor children from the marriage.
2.The value of jointly and individually owned property and other assets and the financial needs, obligation and responsibilities of each party.
3.Any debts or liabilities of the parties.
4.Pension arrangements for each of the parties, including future pension values and any value to each of the parties of any benefit they may lose as a result of the divorce.
5.The earnings and earning potential of each of the parties.
6.Standard of living enjoyed during the marriage.
7.The age of the parties and duration of the marriage.
8.Any physical or mental disability of either of the parties.
9.Contributions that each party may have made to the marriage, either financially or by looking after the house and/or caring for the family.

CSA maintenance calculator:
www.csacalculator.dsdni.gov.uk/calc.asp

Handy tax credits calculator:
www.hmrc.gov.uk/taxcredits/payments-entitlement/entitlement/question-how-much.htm#7

Handy 5 Minute benefit check, tax and housing benefit calculators:
www.moneysavingexpert.com/family/

CAB Benefits Check:
www.citizensadvice.co.uk/getadvice/benefit-calculator/A2B-Benefit-Calculator/#730

Parenting issues:
www.familylives.org.uk
www.theparentconnection.org.uk

Other Support for Women – Children, Housing, Domestic Violence
www.womensaid.org.uk/ and refuge.org.uk/ - Helpline 0808 2000 247
www.ncdv.org.uk/ - Helpline 0844 8044 999
www.gingerbread.org.uk/ - Helpline 0808 802 0925
Housing www.england.shelter.org.uk/get_advice/families_and_relationships/relationship_breakdown
(Note that there is usually an appropriate link on these websites for England, Wales and Scotland where the law, advice and contact information may differ.

LadyLapsang Sat 03-Nov-12 15:04:17

I think he is talking rubbish. The normal arrangements in your family for the children are SAHM and full time working father. Don't let him intimidate you into moving out, selling the house etc. I think you will need to work but it may be that you could work part-time and keep the house and care for the children the majority of the time. All the parents I know who have split up seem to have the children with dad every second weekend and possibly an evening mid week if they live nearby. I think things would be totally different if you both worked full-time or he worked less hours than you and was the children's primary care giver. You need to see a really good lawyer. Good luck.

ChangeAfoot Wed 02-Jan-13 23:25:41

Thanks for these extra messages; sorry am revisiting this thread as things have worsened. After a dreadful Christmas and lots of his abuse, he has gone out this evening and now announced via text that "we don't need to talk again until we are making divorce arrangements"; "for avoidance of doubt I will be living at the house until such time as we agree what to do with it, eg sell it or rent it out"; "we need to arrange that we both have a residence that can accommodate the girls for overnight stays so we can be residential parents on a 50 50 basis".

He knows from previous discussions that I am very anti the idea of 50 50 residency; in fact the idea makes me feel sick.

I am absolutely gutted that my husband is already taking what seems to be a very aggressive tack. That I may need to put a brave face on every day for my DCs when he is sleeping in the spare room and ignoring me - as well as refusing to do most of the childcare/etc (as is his way). Please god, what a hideous start to the year... am in floods of tears.

STIDW Thu 03-Jan-13 10:24:51

I'm sorry you are having a hard at the moment. Have you seen a solicitor yet? If not you it would be worth doing particularly if you might be eligible for legal aid which won't be available soon.

toosoppyforwords Thu 03-Jan-13 11:00:50

Hi, firstly i am not a lawyer and seeking proper advice is critical.

Can you outline why you would be so adamantly against 50:50 shared residence? Is it for emotional reasons, i.e. that you can;t bear to be separated (in which case your husband may well feel the same) or is it due to practical reasons?

The reason i ask is that 50:50 can work, but it is hardwork and involves parents being able to fully cooperate in regards to behaviour, discipline and many other things as well as being able to discuss matters relating to the children. It does therefore mean a lot of contact with the ex which is not always helpful. It also means on a practical level he has to be able to do drop offs and pick ups and full childcare duties 50% of the time - does he really understand this and is it achievable?

Also, it is important for both you and your husband to look at this from the perspective of what is best for your children, not what is best for both you and him. It can be unsettling for children (especially young ones) to constantly be on the move between houses and not feeling like they have a settled, permanent home. Also as they get older and do more activities after school and at weekends they need some consistency in being able to do these. This is not always possible if they are constantly between 2 houses (unless you live very closely)

It is completely understandable that you want the children with you but from a law/courts perspective they will look at what is best for the children so you need to demonstrate that it is in their best interests not yours to have them with you the majority of the time with agreed contact with their dad.

DOnt be bullied and pressured into agreeing anything without expert legal advice, but do be prepared to keep emotions, blame, etc out of it, keep it fact based and argue with impartial evidence.

I would also suggest you maybe start documenting things with regard to the fact he is not helping with children etc - for someone who claims to want 50:50 residency that is not a great way to go

Good luck

CaptainNancy Thu 03-Jan-13 11:13:42

I'm sorry things are so bad for you at the moment, but I cannot understand why you don't agree to 50:50 shared care. You said he's a hands-on father, surely you both have equal rights to care for your children, and more importantly your children have rights to equally be with their parents.
If you want to go back to work, surely 50:50 would halp facilitate this too?
If you don't have equal residency, then finances won't be an equal split as far as I'm aware (the parent with most reidency will have larger claim on family home I believe) but it doesn't sound as though finances are an issue in purchasing new homes.

PandaNot Thu 03-Jan-13 11:22:21

I don't understand either why you are so against a 50:50 arrangement. I know it's feels unbearable to be away from your children for that amount of time but he will probably feel the same too. My DH and I have discussed divorce a few times over the last year and not once have I considered that he would have anything less than 50:50. He would be devastated to only see them every other weekend and a night during the week which is what is often suggested.

SoupDragon Thu 03-Jan-13 11:28:21

THe house is not in my name, it was bought using some money H received.

Firstly, go the the Land Registry and print the form which will protect your "home rights". Its form HR1 towards the bottom of the page.

ChangeAfoot Thu 03-Jan-13 11:35:40

Thanks all.

I'll tell you why I'm so against 50:50. Because my children are very small (3 and under) and I don't think it is in their interests to be carted from A to B every 3 days or so. Because my brother did the same thing as a pre-teen with my parents and it absolutely destroyed him. And because I have been their primary care giver since the day they were born and although he's a "hands on" dad in the sense of playing with them, he's barely ever given them a meal or dealt with all the other minutiae of actual parenting other than the fun stuff rolling around on the floor playing dinosaurs.

I have no objection whatsoever to them seeing him everyday, for him to put them to bed, etc. But I feel very strongly that it is in their interest to be put to bed in the same bed, most of the time.

I'd also like to say that it will NOT be easy for us both to buy new homes, if we want to remain in the local area (London - in which house prices are notoriously high). I am not working and even if I do, don't imagine I'd be able to get a mortgage for a while yet, and even then, it would only be a small one.

My husband is very bullish and aggressive, and behaves like a barrister on heat when it comes to matters like this. I am already feeling extremely vulnerable - I have no money, not eligible for legal aid despite having no income and no assets. Thanks SoupDragon for that link - I phoned the Coop Legal Services this morning and they told me about that too, so I must get onto it. It doesn't help that I've had about 2 hours sleep and feel shocking, and have two poor toddlers here who need looking after despite having only a shell of a mother available. "D"H didn't come home at all last night after sending that text - it's been a grim 24 hours sad

toosoppyforwords Thu 03-Jan-13 12:07:01

I feel for you, i really do. I personally would struggle with 50:50 in my case also for similar reasons to yourself and i do believe children need a safe, secure, permanent home (even if that is a tiny one)

My point was that you have to be able to demonstrate that it is not in their best interests to the courts if it gets that far. Your 'D'H will be putting forward a case (if he continues in this vain, which he might not once his solicitor gets involved) that it is in their interests to be with him for 50% of the time - you will need to be able to counterbalance that with impartial, grounded reasons.

As you are the primary care giver and generally always have been, especially as the children are still very young, it is most likely that his solicitor will advise him not to go down that route, or that if he does, he is unlikely to get it (that is what happened to my sister during her divorce - husband said he wanted custody, then 50:50 and solicitors told him basically not to bother as he wouldn;t get it and it would be a costly fight he would lose) As it turned out he soon lost interest anyway and hardly had any interest in the children (cue new woman on the scene!). As you have been a SAHM and he works full time i dont think the courts would change that status quo tbh

Anyway, my point is, whatever you do, argue to the facts, keep being reasonable (send emails and keep copies etc) to show you are not trying to restrict contact, and are being more than reasonable, (use the mumsnet Relationship board to vent your anger, hurt and emotion!) as hard as it is dont let emotions take over.

I wish you luck. Please arrange to see a good specialist family lawyer asap!

CaptainNancy Thu 03-Jan-13 12:28:42

ah- terminology then- I wouldn't call playing with your children being a hands-on father! grin
If he never actually does any parenting or care then I see your concerns.

ChangeAfoot Thu 03-Jan-13 14:15:17

I think I was feeling a bit more charitable towards his efforts in my original post grin

I'm so unsure as to what's normal to be honest - he does get up in the night for them, and puts them to bed sometimes/does baths. But despite hundreds of hints, will NEVER take them down for breakfast and waits every single bloody day for me to get out of bed and do it (and then spend 2 hours faffing about on the toilet and putting his socks on angry before deigning to come downstairs to socialise with us), rarely gets them dressed and still maintains he "doesn't know where anything is" in their ONE chest of drawers with neatly stacked clothes, so can't dress them alone. Under duress he will take them to the playground, although when he tried that on NYD he aborted the mission after 20 minutes because one of them was crying too much in the buggy.

Just spoken to a couple of lawyers - am looking at £375 for an initial 1.5 hour appointment (with free first half hour). Shocking, I just don't have the money in my account, and he's saying that I am eligible for legal aid (I checked this morning and they said I'm not) - he says we need to apply for benefits/ income support and THEN I will be eligible. Won't that take weeks??!! Fucking hell, am so utterly depressed.

MOSagain Thu 03-Jan-13 14:37:35

changeafoot that sounds a bit on the high side if half an hour of it is free. Can you say where you are in the country so that hopefully one of the family lawyers on here might be able to recommend someone close to you?

You really do need to take legal advice asap

ivykaty44 Thu 03-Jan-13 14:45:36

What do you want to happen?

Do you want to divorce?

Do you want to live in a flat with your two dc and have shared residency?

Do you want to both parent together your dc?

Do you want to go back to work and leave your dc with their father whilst you work away from home and build up your own working life again?

Do you want your dc to be fathered by there father and him have to take charge 50% of the time - it is surprising what father can and will do if the other parent isn't around, they may not do things the same as you but that doesn't mean it is the wrong way to do things...

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