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Help re divorce

(16 Posts)
scribbles1980 Wed 28-Sep-16 12:48:01

So my friend is getting a divorce. No children involved so profit from the house is to be split 50/50.
Not much money in the pot but he does however have quite a big pension.
Ex wife is seeing new man but not yet living with him.
He knows and agrees that ex wife is due 50% of his pension.
The ex wife's mother is very elderly & her property was put into the name of her 3 daughters 7 years ago.
I don't think they can sell the property but I think this was done so that if she went into a home the house couldn't be sold to pay fees.
Friends solicitor has said that this will be classed as an inheritance and he therefore cannot have a claim.
The amount is quite large & friend said they did not save much because they knew this money was coming.
Is the solicitor right that this is not classed as an asset?
He literally will come away with next to nothing anyway but would like to protect as much of his pension as he can.

scribbles1980 Wed 28-Sep-16 13:00:58

Also the solicitor has requested he pays his fees monthly. Is this normal? I thought that fees come from the settlement

Collaborate Wed 28-Sep-16 19:28:27

It is an asset. It should be taken in to account if otherwise there isn't enough to go round. Needs might be important.

scribbles1980 Wed 28-Sep-16 21:49:43

Collaborate thank you. I thought it would be classed as an asset but the solicitor is saying it is an inheritance.
But the property is definitely in the 3 daughters names.
So could he use this as a bargaining tool?

Familylawsolicitor Thu 29-Sep-16 05:53:51

I agree it has a different character than inheritance as the property is in the daughters' names and is certain to come to them at some point rather than a possible inheritance which can be lost through care home fees or changing a will. However if the mum goes into a home it is possible that a local authority may try to use the equity in the house as although it's not bene in her name for 7 years she retained the benefit (living in it). Unlikely but possible so it may not be the case that all the equity is available to the daughters on their mother's death.
Additionally it may still be some years before the wife gets her share if the elderly mother has a life interest so is not a realisable asset.

It is of a similar character to an inheritance so your friend should expect his wife to raise his own inheritance prospects if he uses the house as a bargaining chip.

It's quite usual to pay bills as you go along on a monthly basis and very unusual for solicitors to await payment out of settlement. If that is not affordable there are litigation loan companies who will lend against settlement so the solicitor gets paid as you go along.

phillipp Thu 29-Sep-16 06:29:52

My mum has just done her well. Her solicitor talked her through the option of putting the house in mine and dbros name.

She quite clearly states that if my dbro or I were to get divorced, our spouses could claim half of our portion. As it was an asset. As it was in our name, it wasn't inheritance. It was an asset acquired during the marriage.

Due to some problems that dbro and sil are having marriage problems so mum decides not to do this. Unfortunately sil has form for being very vindictive and we would end up having to sell the house to give her share, if they split.

Perhaps they could negotiate? He keeps his pension and she keeps her mums house?

scribbles1980 Thu 29-Sep-16 08:40:30

Thank you for the replies.
phillipp I think this would be a good option and hopefully he can.
It really isn't about trying nor to pay her but it doesn't seem fair that she will have half his pension & the money from the mothers house.
Only because as I said they planned their retirement (maybe stupidly ) on receiving this money.
So, they took out loans for things knowing they had this lump sum coming.
They had made provisions so that if it came to it the mother could live with them rather than go into a home.
The wife is living at the sisters 2nd property at the moment (don't know if she will move into the om house).
But my friend needs to try and get a mortgage to buy somewhere. If he can keep moat of his pension I think this would help him .

Collaborate Thu 29-Sep-16 09:15:15

I had a look yesterday at the circumstances in which a LA would try and attack the old home for fees - I came away with the understanding that they would be unlikely to be able to prove that the reason for the transfer was to avoid NH fees so wouldn't try after so long.

However unless she's paying rent for living there it will attract IHT on death - so depends if the value of her estate in total will take it above the IHT threshold.

scribbles1980 Thu 29-Sep-16 09:24:00

I think the value would be around £250k .
So, as this is in the wife's name would it be classed as an asset?

Fidelia Thu 29-Sep-16 09:48:25

I'm not a solicitor, but I think it could be argued to be a marital asset, because although not currently realisable (due to the life interest in the property), a pension could be argued to be not currently realisable in a similar way.

I'd suggest that he offers offsetting her share in the house against his pension

And yes, it's normal to pay monthly. And if the solicitor is concerned about their clients finances, they may ask for a sum of money upfront, and only do work up to that value.

scribbles1980 Thu 29-Sep-16 10:16:39

Thanks for the replies.
Are there any solicitors that can advise me for sure please?

HereIAm20 Thu 29-Sep-16 19:46:54

Solicitor here -

Yes her share of the property would be classed as a marital asset unless the soon to be exH agrees that it should not be treated as such!

This happened to a friend of mine. Initially her ex agreed that the "inheritance" from the parents (a holiday cottage) would not be a marital asset because if there had not been the gift and they died later she would be inheriting when they were divorced. Also he would still be inheriting from his parents.

Long story/short version - enter another woman and suddenly everything was up for grabs and she had to buy him out of the holiday home by getting a mortgage! Her parents were gutted!

HereIAm20 Thu 29-Sep-16 19:48:21

PS. yes to monthly fees or money on account of costs.

This should also focus your mind on how much you are spending and to help you make a decision what to concede or not.

palanca Thu 29-Sep-16 20:20:54

collaborate is a solicitor, I am a barrister and I suspect that familylawsolicitor is also a solicitor - no asset can ever be entirely ring fenced. courts prefer not to touch inheritances but they certainly will if necessary. if the assets are modest - which they appear to be - then this would be such a case

scribbles1980 Thu 29-Sep-16 22:35:32

Thank you so much for your replies.
His solicitor has said she doubts that he can claim. But they may take it into consideration as they lived a life knowing this money would be coming.

scribbles1980 Thu 29-Sep-16 22:38:10

Hopefully he can use this. Thanks again

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