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Separation/Divorce - questions - shared residence and money question!

(5 Posts)
andwhatnow Fri 16-Sep-11 09:08:47


I would appreciate it if anyone has any advice about some issues regarding separation. My husband and I separated four months ago by my instigation. We are fairly amicable, although he desperately wanted us to stay together. I am moved out of the family home and am living in a rented house close to the home. Our 13 year old spends half the time with me and half with his dad and this is working quite well. We both earn similiar amounts so neither of us pays each other child maintenance and I even split the child benefit down the middle which is payable to me. I am currently paying the rent on my own place now as well as contributing £200 to him to help pay the mortgage. I visited a solicitor to find out my rights and she insisted that I should not have to contribute to paying for a home I am not living in. I can see both sides - obviously it is tough financially, but we jointly own the family home and my husband feels that I should contribute, because when its sold (its currently on the market), I will then have 50% of the equity, so its in my interests to contribute. What do other people do in this situation? I don't want to enflame the situation, but would be interested to hear.

Secondly, my husband is asking that our son has his place of residence named as with him. We do spend equal time with him, and ideally I would like him named with me. How does naming one address affect me and my son legally (even though it is shared residence?).

Thanks alot.

cestlavielife Fri 16-Sep-11 13:44:45

ask for it to be recorded as shared/joint residence.

if he has sole residence then he could claim some of your share of house to house the child (even if reverts back to you when child is grown up)

if you make it sole residence in dad's name only you lose certain rights

how much is the rent versus mortgage?

when is it likely to sell?

Mamathulu Tue 20-Sep-11 10:37:05

Legally, your solicitor is probably correct that you have no duty to pay towards the mortgage of a place you don't live in, but if it's in your joint names, surely you have a duty to ensure that the mortgage is paid? To that end, I tend to agree with your ex - if you'd like to retain your half share of the equity, then you need to maintain your contribution to the house until it's sold. My ex walked out on me leaving me to pay a £700 a month mortgage with no income, and didn't pay a penny towards it from that point on, so I calculated the difference between the mortgage contributions he paid, and the rent he would have paid had we not been together and gave him the difference. If you really can't contribute towards the mortgage, then you'll have to come up with a way to have some kind of compensation for the house.

On the second point, I think if your husband has remained in the marital home with your DS, and shared care is equal care (as they're not synonymous), then your DS's address should remain as it was previously - I think it would be different if you were caring for him more than half the time. Again, I've always held the responsibility for his school life, health matters, transport to and from school, after school clubs, childcare etc. I only ever worked part-time to enable me to care for the children, and he worked full time, so I have always been the primary carer. Had I left the home, been working equal hours, always had equal care of the children, I'm sure it would have all been different.

Probably not very helpful, but I'll come back when my brain's working a bit better! smile

reluctantmpvdriver Tue 27-Sep-11 00:30:19

I have no idea about the legal situation but if you share care equally you both have a need for a house - and given that you each have equal care how you have managed this is a matter of chance - ie it make no difference that he is in the former family home as you have equal needs for a home and to house the kids . I would have thought that the main issue is the differential cost - you should only have to pay for the mortgage if he is £200 worse off a month because your rent is cheap?

PooleFamilyLaw Tue 27-Sep-11 20:08:19

Hi andwhatnow

Regardless of who stays in the former matrimonial home (FMH), Mamathulu is right - with a mortgage in your joint names you both have the legal obligation to your mortage lender to ensure it's paid, or both of your credit ratings will be adversely affected.

However, in practice it is a matter of whether your income less your outgoings/needs (including rent on your new home) leaves you with any surplus which might potentially be used towards the mortgage on FMH, and also whether your husband's income less his needs (inculding 100% of the monthly mortgage payment) means whether he has a budget deficit and so needs any financial help to pay the mortgage.

Another pratical financial factor which many separating couples need to take into account is whether FMH is significantly more (in size and cost) than is needed to accommodate the parent and child(ren) who remain living there. Although it is often preferable that FMH/child(ren)'s family home is not sold, sometimes it is a fact that the property is too big and so downsizing can help reduce mortgage payments and bills. I note that your FMH is already on the market to be sold anyway.

I recommend that both your and your husband try putting to one side "legal rights and responsiblities", and instead try focusing on the practical financial implications of you and your husband now living apart. From my experience as a family solicitor, this is more commonly how cases of this type are resolved, with the parties sitting roundtable themselves, and if needed also both parties sitting together with specially professionals (such as a mediator or collaborative family lawyers) in order to reach a balanced compromise agreement. I would hope the solicitor you saw flagged up all the options available to you to resolve your situation amicably, not just your "legal rights"? Go to the Resolution website to make sure you're getting the right advice from the right type of specialist family lawyer

As for naming your child's "place of residence", this is not strictly required by law. I return again to the more appropriate focus for discussion being the practicalities of you and your husband living apart whilst your child shares time between you both. legal definitions of "residence" and "contact" are then not an issue.

However, for the purpose of the strict application of child maintenance rules, one of you would be the "non resident parent" (NRP) and so responsible to pay child maintenance to the "parent with care" (PWC). However, with proper balanced dialogue and an agreement (has happens with many cases), it's not necessary to involve the child support agency (CSA, but now called CMEC) at all but to have a voluntary agreement instead.

Further, who your child "lives with" can affect which parent receives child benefits and child tax credits. But, if there is proper balanced dialogue about how the distribution of all sources of income are used to pay the bills for 2 separate homes, then who actually receives benefits/tax credits becomes insignificant if the family as a whole (albeit separated) benefits from all sources of available money.

I hope this helps.

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