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Wondering if I wasn't given sound legal advice

(32 Posts)
squishy Sat 02-Apr-16 11:43:07

I sought advice from a solicitor when planning how to separate from husband. I have nothing in pension (paid into for a year, but nothing there, so she said exclude); we have a house and that's pretty much it. I work (always have, always paid all the bills); he doesn't (hasn't mostly for the last 15 years, since moving in to house - he's done occasional work as self employed but never shared what he's earned or contributed to bills/childcare I've incurred to let him do that); he has been stay at home parent in that he's picked up/dropped children off at school/preschool and looked after them - he's not played with them/taken them out lots/been engaging and he's not looked after the house/shopping/planning what to eat, I've still done all that.

Children are 9 and 4; hubby is 40 and I'm thereabouts (!). He's just starting a business but again had no plans to bring money into the house, just to support himself.

So, my plan (after the legal advice) was to get house valued, deduct shared debt and remaining mortgage and then work out what amount there is in equity to split and how to split it. She advised 50/50 would be the most I'd have to give him and advised I start at 60/40 (my favour) as I will still have children, child care costs, capital repayments etc; she advised we then get a deed of separation to 'finalise' financial arrangements and then divorce after 2 years. She warned that, during this time, if either won the lottery or parents died, the other would be entitled to half.

She also warned me he may try to go for custody/ claim to be residential parent and then claim both child and spousal maintenance. I didn't think he would and he hasn't.

So, now we're in a position where I'm remortgaging, we're getting house valued, I've explained the plan - he wants as much as he can (given that he has no credit rating and won't be walking away with enough to buy a house outright and hasn't got income to demonstrate being able to pay a mortgage) and I want what's fair for me (given that he's unlikely to pay my childcare costs - which will go up - or any maintenance for the children).

However, I don't want to 'screw him over' - he is starting from scratch although he will take what he needs from the house and I will replace (don't think it's fair he goes to an rented, unfurnished house with nothing and I stay here with everything) and ultimately I want him to have a place where our children can eventually go and stay with him.

BUT I've recently been reading threads about quicker divorces, consent orders where judges can decide our settlement isn't enough (for him). And I'm worried. There's nothing apart from him that's stopped him from earning - but he doesn't earn anything. I don't want to pay him maintenance. I'm going to be doubling my mortgage payments and picking up more childcare costs - I don't think it's right that he gets any spousal maintenance from me.

I was planning to still go ahead with deed of separation (this happened very quickly for him and I think it'd be psychologically better than a quick divorce) and assume I don't need a consent order - do I need to go and get better/more advice?

Not sure if this is relevant, but he told me last night he is intending re-registering for child benefits (he had to stop when I had a promotion - I put the child benefit in his name as he would get an NI contribution from it, which he's never paid into) - even though he won't be having the children for more than ad hoc stays, certainly in the first year or 2 (his choice due to him throwing his energy into the business). I guess that's not my business - unless it's likely to have someone say 'hang on, this poor guy should be getting maintenance' - OR, worse, hang on, they should be living with their dad (which they don't want to; he doesn't want full time and I don't want).

Minime85 Sat 02-Apr-16 16:43:54

Sorry I got a bit lost by post but why would you wait 2 yrs? Can you divorce him for unreasonable behaviour? My situation is different to yours but as a contrast I got all equity in martial home roughly £80,000 except for £5,000 which ex had he pays 400 a month for two dcs and we left each other's pensions alone. His is huge compared to mine as I worked part time for 7 years. All sealed by judge in court order

AnotherEmma Sat 02-Apr-16 16:51:47

If you will be the resident parent you need to claim child benefit.

I don't think child benefit has anything to do with NI contributions, that seems strange to me.

But child benefit is to help with the cost of looking after children so it should go to you not him.

There are benefits he can apply for if he wants to go from being a cocklodger to being a benefit scrounger such as JSA if he is looking for work or ESA if he has a disability or illness that prevents him from working.

There is no harm in getting a second opinion from another solicitor. In your position I would definitely do my homework and "shop around".

AnotherEmma Sat 02-Apr-16 16:53:17

(Disclaimer: I am absolutely not saying that JSA or ESA claimants are benefit scroungers, really sorry if my post came across that way!)

AnotherEmma Sat 02-Apr-16 16:57:52

These links might be useful:
Ending a marriage - Citizens Advice
PDF guide to divorce - RoW
Financial arrangements after marriage breakdown - RoW

RedHelenB Sat 02-Apr-16 17:02:51

My ex got very little out of our agreed consent order and a judge didn't call it back into court, My friend's ex got a bigger percentage and they were called back in but her ex stated he understood and was happy with the consent order and the judge signed it off. HTH.

titchy Sat 02-Apr-16 17:11:42

The parent who has the children the majority of the time is the only one who can have CB - that's you not him so get your application in. Even if you earn too much. (CB gives the recipient NI credits if they are not working btw to pp.)

Don't know about the finances, but you need to house the kids, he doesn't so you should get the lions share. Will 40% enable him to rent a one or two bed place so they can stay over with him?

Eustace2016 Sat 02-Apr-16 18:37:12

1. I don't agree it is good advice to wait 2 years. Divorce now on unreasonable behaviour grounds.It's dead easy.

2. You don't need a deed of separation you need a full and final clean break settlement consent order which you both agree then stamped by the court. Only with that have you finality.

3. If you dont' do this there is a risk he will be advised to claim maintenance from you for himself or life. My ex earned a 10th of what I eanred. He worked full time however. He got almost 60% of our joint assets even though he doesn't have the children or pay towards them (his choice) because I wanted a clean break and he wanted half the assets and maintenance for life.

jellybean2000 Sat 02-Apr-16 20:03:40

OP, I've only skim read your post, but something popped out, which I will give you my POV on.

My stbx barely works. He has worked less and less over the years. He's playing the SAHD card and I was anxious I would have to continue to support him once we're divorced, but with 2 school aged children there is no reason for him not to work and I've been told more than once by different people that he's going to have to show he's trying to get better paid employment before he considers asking me to support him. Most people, especially single parents are able to work when their children are at school.

Gotta go

tribpot Sat 02-Apr-16 20:11:57

.gov.uk page on Child Benefit - being in receipt of it for a child under 12 allows you to qualify for a national insurance credit.

AnotherEmma Sat 02-Apr-16 20:15:48

Thanks titchy and tripbot, I stand corrected!

squishy Sat 02-Apr-16 20:37:47

Thank you all; I don't really want to go on grounds of unreasonable behaviour, I've tried really hard to keep this civil and so far (bar a few days of real anger from him to me) it's been OK; I think this would tip him over.

Yes, equity will get him rented property but he wants to eventually be able To get back on the property ladder.

I think I will go and speak to them about a full and final consent order, I didn't think he could come after me
For maintenance after deed of separation, just inheritance or lottery wins (the former we've agreed not to do and the latter, chance would be a fine thing but I would happily do!). That's scary....

Eustace2016 Sat 02-Apr-16 21:03:50

If you don't have the consent order then he can come after you for maintenance later. Secondly even with a consent order if it is not a clean break and gives him nominal maintenance even £1 a year he can come after you in later years for more.

On unreasonable behaviour it is basically divorce on demand. We sent my husband's solicitor a draft petition. He insisted instead he divorce me which is fine - just about any couple can come up with an unreasonable behaviour petition and no one sees it - she ignored me. He was rude about my mother. He did not stay in touch when away. On 6 June he slammed the car doors and frightened me - you just go through the motions to ensure you don't have the silly wait for 2 years whilst legal bills mount and you cannot get on with your life.

AnotherEmma Sat 02-Apr-16 21:12:34

Are you scared of his reaction if you divorce him? Has he ever been verbally abusive or physically aggressive?

squishy Sat 02-Apr-16 21:39:07

Thanks both; we've agreed to do this (as far as possible) without legal involvement - negotiating with each other etc. But I will get more input; so far we've agreed settlement will be full and final; I'm 'keeping' the children with me for the mostpart and don't think he'll pay me any maintenance.

I'm not really scared of his reaction, Emma, he's a catholic so this all goes pretty against his instincts anyway. He's an angry man and I don't like the way he shouts, slams doors, kicks things, throws things around but he doesn't scare me and I don't feel at risk of harm, no.

With regards to the child benefit, I know he's not legally entitled to claim it (and I earn above the threshold to claim) but that may not stop him from trying to do so. Once we are apart, I don't think it can come back and bite me (hope not)

AnotherEmma Sat 02-Apr-16 21:59:38

"He's an angry man and I don't like the way he shouts, slams doors, kicks things, throws things around"

Charming.

Divorce him. You need a clean break from this man.

You should claim child benefit. And he should pay child maintenance.

squishy Sat 02-Apr-16 22:20:01

Yes, charming indeed - he would say I'm making a fuss about the temper because it's not all the time - but it is too much (and not even the main reason I've left him!).

You're right, he should pay child maintenance. But he won't. And I want to get on with living and enjoying my life without him than keep harbouring all the anger - I'm fortunate with my job to be able to just get him out of my life and prioritise myself (for once) and my children (as always).

Thanks for the support - it is reassuring to know it's not just my perception of 'bad' behaviour (which is sometimes his take on it).

AnotherEmma Sat 02-Apr-16 22:45:46

When he minimises his behaviour, blames you for "making a fuss" and says your perception is wrong - all that is classic emotional abuse. It's the script.

Signs of emotional abuse
The Abuser Profiles
Am I in an abusive relationship?

You say you're lucky in that you have the financial means to live independently of him. Use those means and get a good solicitor.

Minime85 Sat 02-Apr-16 22:49:50

Unreasonable behaviour does not lay anyone legally to blame as in its just a divorce. I told ex what was in it he saw it before it went off as we knew we needed to do it to get divorced before the two years was up and it's only possible then if he agrees anyway. 2 yrs is a long time to wait to hope he will still be as amicable then.

I thought consent order could only be done once decree nisi given otherwise have to have like a separation order thingy you've mentioned so it's just wasting money

AnotherEmma Sat 02-Apr-16 22:53:47

"given that he has no credit rating and won't be walking away with enough to buy a house outright and hasn't got income to demonstrate being able to pay a mortgage"

That's his problem. He can get a job, like everyone else.

"don't think it's fair he goes to a rented, unfurnished house with nothing and I stay here with everything"
Why? You've paid for everything, haven't you? The mortgage, bills, and presumably the furniture too.

Everytimeref Sat 02-Apr-16 22:59:52

Unless he gets legal advise a deed of separation wont have any legal weighting and wont stop him asking for more at time of divorce.

squishy Sat 02-Apr-16 23:14:05

Thanks everyone, it's really useful to have this input. I think we both need him to get out ASAP, so I think when I can I'll give him an 'interim' amount just to get him out/renting so we can have head space and then we'll sort this out.

Having read up a bit more on unreasonable behaviour, I feel a better about it now (able to frame it to him palatably).

AnotherEmma - I want to get a new sofa, bed and a few other bits - he may as well have those!!

Everytimeref - that's scary, I thought it we both consented, it would be legally binding (and had been advised of that by solicitor). He won't/can't pay for legal advice and I don't want to pay for both of us (not sure if I'd have to).

I want to try and keep it amicable for now - he could make things much worse if he wanted to (I can imagine his Dad offering to foot the legal bill to try and get more out of me if it all gets nasty, so don't want to go down that road) but for now, we're both in agreement - I just don't want to rely on it always being that way.

AnotherEmma Sat 02-Apr-16 23:18:49

No you don't have to pay for him to get legal advice! You don't have to give him money to move out either. He can pay for that himself - with the money he's kept to himself.

Please please get a second and preferably third legal opinion. Could you get solicitor recommendations from friends or colleagues? You could also call the free Rights of Women family law helpline. Lastly your local CAB should have a list of local family law solicitors (including any that offer a free 20/30 minute consultation).

Shutthatdoor Sat 02-Apr-16 23:20:43

Thanks everyone, it's really useful to have this input. I think we both need him to get out ASAP, so I think when I can I'll give him an 'interim' amount just to get him out/renting so we can have head space and then we'll sort this out.

Be warned that he doesn't have to leave until all finances are sorted and sealed by the court. In fact if he was to seek legal advice they would usually advise him to stay put.

AnotherEmma Sat 02-Apr-16 23:25:13

I've just re-read your posts and spotted this:
"With regards to the child benefit, I know he's not legally entitled to claim it (and I earn above the threshold to claim)"
There is no earnings threshold for child benefit. It's not means-tested. (But if you earn over £50k you may have to pay a tax charge.) So you can and should claim it.
www.gov.uk/child-benefit/overview

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