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Financial Settlement Help

16 replies

JohnnyMarr · 11/09/2017 09:47

I have posted this in LegaI Matters and have received some helpful advice but still unsure as to quite what I should realistically be holding out for, so hope it's okay to repost here?

I am currently in the process of divorcing my husband of 17 years and wondered whether anyone who's been through a similar scenario or is legally minded could cast any light on my situation.

In a nutshell, he walked out at the beginning of the year to cohabit with OW and her child in her property. Subsequently he has been paying maintenance in line with the CMS minimum and the mortgage on FMH, where, at least for the time being, I remain with DCs 14 and 10.

Prior to him leaving I was, by mutual agreement, a SAHM, essentially having been a trailing spouse to enable him to progress in his chosen career - he had a manual job when we married and is now a senior director in a multi-national company earning in excess of 120k/pa. Since he left I have managed to secure a part-time, minimum wage job (am also volunteering) and am in receipt of tax credits. I am neither stupid nor work-shy but sadly, when you're a mid forties single mum who's been out of the work place for over a decade and, to top it all off, you live semi rurally, potential employers are not beating down your door!

We attended mediation where he agreed to continue paying the mortgage and CM until youngest DC is 18, however he has now completely reneged on this and his latest proposal is a clean break whereby he allows me to keep all the equity in the house, which in a very best case scenario would be around 100K, obviously 50k of this is already mine by default (and he has already walked away with 11k of assets) This amount, and the paltry mortgage I may currently be able to get, would leave the DC and I unable to rehouse - he appears remarkably unphased by this despite his insistence that the DC are his top priority (he hasn't seen DD in 4 months and has only had DS eow over the holidays)

Clearly he is adequately housed, has been able to afford mortgage and CM for the last 7 months, and in fact has had enough of a surplus to recently set up his own company (he has failed to disclose this thus far - I estimate start-up costs to have been between 20-30K)

My solicitor is counter proposing he pays 50% of the mortgage for the next 5 years, at which point the house will be sold and I will retain all equity. Youngest DC will be 15. I will remain unable to rehouse unless my own financial circumstances change beyond all recognition. I feel the DC and I will ultimately be shafted whichever option I choose.

Does this seem fair? Do I need to just suck it up? Should I fight it in court?

Any suggestions, thoughts, or genius ideas to enable me to become wholly self-sufficient and give him the finger hugely appreciated!

OP posts:
thereallochnessmonster · 11/09/2017 09:51

Why can't he pay 50% of the mortgage for the next five years and then you own the property outright? Why do you have to sell it?

He should also be paying considerable CM if he earns 120K per year.

JohnnyMarr · 11/09/2017 10:28

Thanks for your response thereallochnessmonster

The mortgage on FMH is currently over £1000 a month, so even if I could technically afford to pay it in 5 years time (which realistically seems unlikely) the mortgage company wouldn't approve me to take it over in my sole name.

To be fair he is paying maintenance in accordance with CM guidelines, but the cynic in me is convinced this is to lull me into a false sense of security and he will find some loophole to drastically decrease his payments as soon as the consent order is signed.

OP posts:
jojo2916 · 11/09/2017 12:59

He's paying 1000 per month for a property you live in and will benefit from the capital from (at least 50% worst case I'd imagine and if he pays half this long term whilst you live there and gives you cm which should be a lot on his wage surely you can use the cm to pay rest of mortgage and you get the equity in the house too is this right? Surely that's enough, obviously if his parenting is crap that is an entirely separate issue.

JohnnyMarr · 11/09/2017 13:59

jojo He has been paying the mortgage but does not intend to do so moving forward, hence my solicitor proposing that he pay half for the next 5 years.

If he agrees to this, then yes, through a combination of CM, work and Tax Credits I should just about be able to make ends meet.

However, should my financial situation remain unchanged, at the end of that five year period I will be unable to pay the mortgage, will still have one dependent child (and in all probability eldest DC will also still be living with me) and even with all the equity and whatever meagre mortgage I may be approved for we will still not be in any position to rehouse. Meanwhile X is housed and will be taking home over 5K a month even after maintenance payments.

My understanding is that settlement is based on "need" and "affordability" yet in the above scenario despite X being perfectly able to afford to help support DC and I our needs will not be met.

OP posts:
Daisybarker123 · 11/09/2017 20:18

I have been representing myself over four years in fourteen hearings. What I have learnt is if you have a hearing advise the court at the start that you will apply for the transcript. Orders and judgements following hearings do not necessarily comply with what was said. If the court know you are getting the transcript they will be on their toes to ensure a just order/judgement is made. Also a transcript is concrete evidence for any future misdemeanours. Divorce is big business for the legal profession and court hearings are the best opportunity for a large costs to be incurred so try to make as many agreements outside court. To assess your needs, calculate your housing need by reference to the local market, that is your first need. Assume your housing need is the same as your ex. Calculate your income need by a detailed schedule of all monthly expenses, again assume the same as your ex to include mortgage payments and pension contributions. If your ex has a private pension you need to apply for a pension share. As your ex is a high income earner, I would not go for a clean break but apply for maintenance of one third of his income until he reaches pension age. If you go for a clean break the lump sum is barely adequate and in my case it has left me with no income or pension thanks to a partisan court. If I went back four years I would have taken half the assets plus one third of his income, which is what I now intend applying for. There is no point in a clean break if you have insufficient funds as you will always be disadvantaged. Remember the settlement has to ensure that both parties are able to go forward to live independantly and in the standard of living you were accustomed to with an income, pension and similar housing. This is set out in section 25 of the Matrimonial Causes Act. Do get the transcripts, getting these was the only time I saw genuine concern from the court. HM gov website provides for form EX107 to be downloaded, which is easy to complete. Best of luck

millymollymoomoo · 11/09/2017 21:17

Don't know from a legal point of view ( let your solicitor guide you) but it doesn't seem fair that he is expected to walk pay for mortgage for next 5 years (or half of it) and retain no capital share of it at the end. You then sell and keep 100% of assets of the marriage( are there pensions?)

I think spousal is fair here which is effectively what your solicitor is asking for but if I was his solicitor I would be pushing for a mesher order and a share of capital.

What are your plans for working full time as I think that will be expected too

Only your solicitor can really advise though

JohnnyMarr · 12/09/2017 14:11

Daisy Thank you so much for such a detailed response - trying to avoid court, but if it comes down to it I too will have to self- represent as I don't have the funds to do otherwise.

I can totally appreciate that 100 % equity may appear to be a very genererous offer but, as you say, if it leaves us unable to rehouse we are indeed at a distinct disadvantage.

milly Thanks for your reply also. X has offered me all the equity in lieu of SM as he wants to be freed from the mortgage, however the outstanding mortgage is around 200K and at present it is simply not possible for me to take this on on my own.

I am investigating work/retraining in order to improve my earning capacity, but again, this is problematic due to my rural location and child care issues.

OP posts:
Daisybarker123 · 12/09/2017 16:45

If you cannot rehouse, have an income and pension from 100% equity then it will not be sufficient for your needs. Realistically the ex will continue to earn a considerable sum, whereas your income will only be limited. I continue to urge you apply for maintenance of approx one third of his income. This trend towards a clean break has been used by my ex who can afford strong legal representation to reduce the final settlement figure as low as possible, which in my case has been so reduced, as to leave me with no income or pension at the age of 60. This has also been achieved by his financial non-disclosure. The best person to consult regarding your needs is an accountant. If your ex starts court proceedings be aware
of the above and the fact that courts are expensive and not just, divorce is big business for solicitors and barristers. I suggest mediation taking accountants figures with both parties completing a Financial Form E, which is a detailed financial statement that can be downloaded from HM gov website. Ideally you both exchange your completed Form E before the meeting and assess each others disclosure. All the best

Moanranger · 13/09/2017 00:51

I have been thru 4 years of negotiation to finally get a financial settlement, so I know whereof I speak. I will try to keep it simple.
You should get 50% of ALL assets, not just house. pensions, savings, anything of value.
As tedious as it is, Form E is your friend. Fill it out & insist he does also.
The Court will NOT sign a consent order which is unfair to either party.
You may HAVE to go to court, so put on your big girl pants and do it if you have to.
Get a Makenzie friend; I did, worth every penny & she was brilliant!

JohnnyMarr · 13/09/2017 14:22

Thanks again Daisy I hugely appreciate the time you've taken to respond and your insight has certainly given me food for thought.

Moan The problem is that there are barely any assets, no savings (quite the opposite in fact!) minimal pension on his part, none on mine, so whilst he'd like to go for a clean break now that I'm a mere encumbrance to his happy ever after, I have no option but to fight for the majority of the equity and SM.

OP posts:
Daisybarker123 · 13/09/2017 15:46

You are quite right there are not sufficient assets for a clean break. Whilst it would be ideal to sever all ties, insufficient finances will persist into your future, while he has a generous income to secure his financial future. All the best

crimsonlake · 13/09/2017 17:32

Daisybarker123, although in theory applying for court transcripts sound a great idea I am interested to know if in fact you received any?
I have been through 7 financial remedy hearings and know that to gain access to the transcripts come at a great cost and that you also have to seek the judges permission for them to be released.
At my last hearing the judge himself requested that my ex and myself apply for copies of the transcript from the original Final Hearing, the cost was going to be some £1200 from a transcription firm, this was for the whole days FH not just the judgement. Turns out after 3 years the transcripts are destroyed which seems ludicrous and something the judge should have known. However I agree you are correct when you say that the judgement passes down may not be reflected accurately in the orders. As I self represented I always took a friend with me to write accurate notes, luckily when the transcript was destroyed these notes were accepted as evidence.

Daisybarker123 · 15/09/2017 08:36

I have got 11 transcripts to date as I was sure the court was not impartial. It has turned out I was right. All kinds of trangressions are recorded, including abusing my right to purchase outright my co-owned property. This family court and an appeal court have gone out of their way to avoid the transcripts and make orders and judgements only based on ex's evidence. They have been expensive but I could not challenge the above now without them. Notes are great, a friend took notes when I applied for an injunction at the High court but I still then got the transcript. As your judge requested the transcript, it at least proves the court wanted the evidence. If the courts had to publish the transcripts court corruption would be stopped overnight and also the rediculous delays in getting a settlement. I had no trouble at first getting transcripts. A later one proving fraud and including a 'gagging order' took a long time to send to my transcriber, John Larking, at Petersfield, who is very professional. I am concerned that tapes are destroyed, as my ex's legal team will have been carrying out the same injustice over many years. Also the tapes record them hissing and groaning when I was speaking which will obviously not be on a transcript. Hope this helps. If you need any more info will be pleased to advise.

NotSureIfiAmWell · 16/09/2017 12:12

I am currently 3 months into our seperation. Stbxh wanted me to sign a separation agreement drawn up by him that stated the house to be sold and split 50/50. He keeps all his redundancy pay from last year and all his pension. He earns 4 times my amount.

Much to his disgust l refused and took it to a soliçitor who requested we both fill in Form E. He wants a clean break still so he can move on with his new partner. Form E also includes shares, bonuses and if you are living with another partner.

greenberet · 17/09/2017 23:41

Hi this thread has got my attention - I'm wondering if either daisy or crimson can help me with your experience please - extremely acrimonious divorce from narc ex who manipulated process on several counts. My legal team told me numerous times they understood the games they play but I was completely shafted and let down by them6 weeks before Fh - appointed direct access barrister who let me down 2 days before rearranged Fh -ended up going to court alone and was in an extremely emotional state due to long term depression. X manipulated circumstances around sale of family home by making out company was going down the pan. I was advised to attend this hearing on my own and didn't get the x,s statement til arrived at court. X.s barrister used my mental health against me so that I was unable to function -male judge basically said I was bitter and full of vitriol as per that case - hearing lasted about 30 minutes I had to go out as so distraught - the statement my legal team prepared was useless in comparison to X's which had this been received before the morning his lies could have been challenged.

My legal team were all about extortionate fees - I had an insurance payout for breast cancer right at the start - I think they saw this as theirs - they certainly took most of it. I wanted to cut & run many a time throughout process due to immense stress - they persuaded me to keep going as def was a case for joint lives spousal. I'm 52 married 20 years and SAHM too op - I also have long term depression which was supported with medical evidence from psychiatrist. Judge ordered I will be able to get full time work in 2 years time when kids are 18 despite everything and only got spousal for this period. I was a 50% shareholder in x business - he manipulated this to show going down the pan - I got nothing for my shares. X ran up huge debts to erode equity and used every dirty tactic he could to wear me down & run up my fees - I believe his solicitor was also underhand.
I have been told my fH was unfair - there was no way it should have gone ahead due to my mental health and the fact I was unrepresented through no fault of my own - long story with DA barrister. Judge refused appeal - think there was some bias here too as x, barrister from her old chambers. I did not appeal within time frame my MH was too fragile but in view of what you have both said I'm wondering if there is anything I can do now. My financial situation is precarious - I can't even get to a place to contemplate work and my benefits run out in 2 yrs time when kids are 18. This is despite x being on a projected income of 95k.

sorry to hijack op -

Daisybarker123 · 18/09/2017 16:08

My ex too is vindictive with a legal team to match. These two are also fee paid judges, a conflict of interests becoming more and more apparent. There is a list of fee paid judges on the website 'what do they know', this list is not readily available and the conflict of interests is not acknowledged by the court. They have controlled the court, ensuring that only ex's evidence was used. Judgements being provable to be false statements of what actually happened in court.
The court blaming me for the court's failures to follow correct procedure as set out in their Practice Directions. The papers for the final hearing should have been given to you well in advance so that you could make a proposal The contents of the court bundle, (documents relied on by the court at the hearing) should have been agreed with you in advance and your evidence included. If this did not happen, then only evidence supplied by your ex was used, therefore the final order would have been unjust. On one occasion I received 22 pages five minutes before the hearing. I can prove the above by downloading the Practice directions, applying for all transcripts, which the courts (county and appeal) and the legal team have done their best to avoid, being a truthful account of all facts and visiting the court twice to get copies from the court file of documents that should have been sent to me but weren't. These things are relatively cheap compared with solicitors and you are then in control of the evidence. Do not let the court bully you out of what is yours by right. Proceedings at a county court are public and transcripts should be in the public domain.
Are you able to get the following:- transcripts of all the hearings (form EX107), Judges Findings of Fact on which would have been based the final order, Schedule of Assets, income and liabilities provided for the hearings, Company bank accounts, Form E, ex's tax returns and ex's bank statements. Your legal team should have most of these. If you were 50% shareholder, you should have received Company accounts from company accountant. If you were a director, you should have signed off company accounts prior to them being filed at Companies House. Co. accts can be downloaded from Companies house website. Have you paid ineffective legal team in full, if not advise them you intend contesting the sums and you want a copy of all their fee notes to justify their costs. Insist they give you all documentation including the court bundles. Down load section 25 of the Matrimonial Causes Act. This is the legislation court must comply with. It states basically housing, income and pension must
be considered for both parties, therefore ensuring an unjust order which only benefits one party proves the court failing to comply with legislation.
I was unrepresented and my health suffered, the court was indifferent and even failed to penalise ex for tax evasion. I gave up expecting
justice and made sure I made all my points in court to be recorded on the transcripts. These now record Aldershot court abusing my right to purchase my co-owned property so that ex's solicitor/fee paid judge could deduct £40,000 of her legal fees from the sale, having got herself ordered in charge of the conveyance. As the court was now aware I had all transcripts, the judge ensured he had turned off the tape when he advised 'what happens in court stays in court'. an obvious threat to be silent
A law was passed in October 2015 which puts the burden of proof onto the party who has failed to disclose assets to prove they have not gained by fraudulent non-disclosure. Previously it was the victim who had to prove that the other party had failed to disclose. I am at the point of instructing a barrister, who I hope will get all costs from my ex, as he has committed fraud and the burden of proof is now on him with plenty of equity in three properties. The more evidence you can get of ex's finances the better. A way to prove injustice is to do a Schedule of Assets, income and liabilities, including pension, @ today.
I am sorry you have had such a terrible time, sadly I know exactly what you have been through. The divorce legal trade, including the courts, prey on income poor victims, assessing their assets and then incurring costs to match whilst terrifying litigants in person into silence and taking a ridiculous amount of time. The whole process is biased and allows controlling, financially secure ex's to buy the settlement they want. If I can help further let me know. All the best.

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