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Confused about how divorce and financial settlement are connected?

(10 Posts)
cherrycoconut Fri 04-Mar-16 11:21:39

Could some kind soul enlighten me on this please? We have agreed to get divorced, for now we're still living together but separately in the same house. It's politely amicable but nevertheless horrid!

Settlement should be fairly straight forward, no dependents, house is the only significant asset which has been valued and we have verbally agreed that I will buy him out on a 50:50 split. I have a mortgage offer agreed in principle for this.

I want him gone ASAP, he wants his money, but the solicitor I saw for my 30mins free advice says as it's the marital home he is entitled to stay until the divorce is granted. She also advised not giving him any money until he has signed all necessary divorce paperwork as a bargaining tool - he's an alcoholic, not really functioning in the real world at the moment. He could also dispute receiving the money and said it was better to do it through the consent order.

Have I got this right in my head? I wrote a lot of notes and am trying to disentangle them , everything being coloured by my overwhelming desire to legally shut the door on my ex and be able to move on with my life!

Am I best to sit tight, get the divorce moving and manage my own expectations that this could be 6 months before its resolved?

OP’s posts: |
DeoGratias Fri 04-Mar-16 12:19:01

1. Don't get the decree absolute until you hvae a court sealed consent order (if you are in this country - Scottish law differs by the way). It will say either you have a clean break or if there is on going maintenance, arrangements for chidlren etc. You negotiate that and then usually the lawyers will draw it up and put it before a judge and then it is approved and sealed and your finances are finished. After that whoever has to pay whom does that and in my case I paid my husband a lot of money after that as set out in the order, then the house and loan went into my name an after that that was finished he moved out. It took us 7 months. What took longest was the convenancing and house transfer into my sole name, not the negotiation with him of the clean break amount he got.
2, if you can constantly chase everyone that helps. So get his lawyers and yours to agree the financial consent order and make sure you deal with your pensions if you have them too in that.
3,. Then once the court seal it get the property lawyer to transfer the house into your sole name with the new mortgage and once that is done you transfer his 50% and then he moves out.

yes don't pay him any capital sum until he has signed the consent order AND the court have returned it back duly stamped as there is a risk a judge on the day might not approve it although that is unlikely. Make sure it does not say either pays the other even a penny of maintenance for the other adult otherwise they can come later to increase that. If you will both keep any private pensions you have and not claim on each other (which is what we did) then make sure it covers that. Ours also said I must pay the children's school and university costs and whoever the children live with pays their costs which is unusual but reflected our situation.

cherrycoconut Fri 04-Mar-16 12:51:52

That makes a lot of sense thanks Deo. I am trying to get him to move out voluntarily and stay with a family member in the meantime. If he does that I've said I will make all mortgage contributions and cover house costs - I'm hoping he'll agree on the incentive it'll mean he can be rent free for a bit and save up some money. Is there any reason this arrangement wouldn't work?

OP’s posts: |
DeoGratias Fri 04-Mar-16 17:20:12

In most couples one moves out but my husband was advised to stay put and he didn't want to split up anyway so was keen to stay until the bitter end. If you can persuade yours to move out that certainly works. I would still even then try to reach agreement with him on finances and do the remortgaging and court consent order etc stages as quickly as you both can to get the uncertainty over as one someone moves out it can be harder to pin then down to negotiate the terms of the split than if you see each other every day.

cherrycoconut Fri 04-Mar-16 17:42:24

Good advice! I've instructed my solicitor today to get the ball rolling ASAP. Poor you with your ex dragging it out, you must have to find new resolves of strength to keep pushing that proverbial elephant up the hill.

OP’s posts: |
doesitevermakesense Mon 07-Mar-16 12:13:30

Can I ask a question here relating to this please - if you have or don't have your DA, what difference does that make to the financial settlement - must this be made first?

Bunkai Mon 07-Mar-16 12:23:44

My almost ex and I are divorcing under 2 year seperation. We've had the decree nisi however I've had to block the decree absolute and exH refuses to include his sizable pension and trust fund in any negotiation (and wants 50/50 despite moving abroad and slashing maintenance).

Anyho if I had let the decree absolute go through I would be no longer entitled to part of his penion and trust because I would no longer be his wife.

So I've had to use the courts to ensure that I get a fair share.

Get your finances agreed in writing before the decree absolute comes through.

Minime85 Thu 10-Mar-16 20:18:42

Exh and I did our own consent order, no solicitors through an on line company as we had agreed what we wanted. Much cheaper. All sealed by judge

DeoGratias Sat 12-Mar-16 08:32:55

You can certainly do it yourselves. If what you produced was utterly unfair - eg husband got £100m wife nothing the judge will not just seal it and will call you into court to explain the discrepancies but a reasonable deal on both sides would usually just be approved by the court whether you have solicitors or not.

on the question about the importance of getting this consent order done before the decree absolute it is as Bunkai says. Also if you don't there is a risk you won't get round to it and then 20 years later as in one recent case once you've made a huge fortune after the divorce the other one will come back for a lot more money and they have a right to unless you've a clean break consent order although that is another issue - whether you will do better with no clean break and on going maintenance paid by or to you or whether you'd be better off with a clean break. That depends on things like who earns most, who might earn more later, whether the person being paid might end up remarrying or cohabiting quickly (in which case maintenance stops but you don't get the money that was paid to them on a lump sum back).

The impact of the new rights to take the whole pension fund at age 55 may also have an impact both on divorce settlements and legal situations where that person might go bankrupt - is it treated as cash once the tax on it is paid (which can be up to 45% tax on 75% of the lump sum) or what?

Freya888 Thu 24-Mar-16 17:09:17

It's a really tough situation. U need a good solicitor. I advise you to try this site . U will find the needed help there.

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