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moving out-legal advice please

(5 Posts)
Benang Tue 23-Oct-12 20:35:13

I'm sure this has been covered but I'm really sleep-deprived and confused, so please bear with me.

I'm considering leaving my husband, temporarily or not I'm not sure. We have a 2.5 year old daughter, and I will be taking her with me. (Not even sure if I'm legally able to do that, come to think of it...).

Some backstory, in case it is relevant: we've always had a difficult relationship but our rows are getting worse, I have a severely diminished capacity to deal with them, and I don't want my daughter to be exposed to them anymore.

I think I should be the one to leave because he has no money to move out and I am pretty sure he would refuse to, in any case. He will probably fight me over every step of this, so I want to find out what my rights are before I do anything.

Would me leaving put me in a bad position with respect to keeping custody of my daughter, if it goes to a divorce? This is the most important thing to me. To complicate matters, I am due to have another baby in 6 weeks time. But I guess the custody/residence issue would be the same for both children. I am the primary carer of our daughter, though I do seasonal teaching work, and right now my husband is doing about 40% of the childcare. Usually it is very much less.

My second concern is whether me leaving will have implications for who gets to stay in the family home. This is also complicated because we're currently in a temporary rented place, while the house that we jointly own is being renovated. At the moment, I have no great wish to move back into that house but I guess financially I may need to. I am paying the rent, the mortgage and the building expenses, and almost all household expenses. In effect I am supporting my husband.

Oh dear, it does look like the height of folly! Fire away.

olgaga Tue 23-Oct-12 21:29:34

Do a bit of reading first - knowledge is power and all that. I think you'll be fine, you do not have to give up your children if you leave, no! What on earth gave you that idea?

Be aware there are plenty of "father's rights" types on here who will scare the living daylights out of you. PM me if you like. I can advise you further.

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.

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.

Benang Wed 24-Oct-12 05:16:45

Thanks, olgaga, really helpful info. A lot to take in though. My husband's parents' divorce was (so he told me) notorious in legal circles for the level of carnage... so, yes, best to be prepared.

olgaga Wed 24-Oct-12 08:33:17

Benang I have a friend one year into this situation. If there's anything you want to discuss/explore feel free to PM me. I tend to offer that nowadays rather than get into time-wasting battles on here with those who have an axe to grind.

At this early stage can I reassure you that all the assets of the marriage are joint assets which will be divided between you both in a financial settlement based on need.

Do not feel intimidated. When your new baby arrives you won't be working outside the home at all, at least for a while, and will certainly be the main carer. Start doing some research and PM me when you are ready.

cestlavielife Wed 24-Oct-12 08:43:27

is there any reason why h would not continue to have dd 40% of the time ie a virtually 50/50 shared residence arrangement?

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