Court order through family court

[atr79gb]

Myself and my wife are currently going through a divorce.

We've not been able to come to an agreement over custody of the children and finances so would like to take this straight to the family court. We have already attended a MIAM session.

Does anyone have experience of failing to agree custody/finances and having the court decide a court order? Any idea how long the whole process might take?

I think the length of time it takes and the process will depend on how far apart you are and what the factors are. I’m 12 months into child arrangement but because my ex keeps moving the goal posts so we are on our third Cafcass report, and he has refused to accept any of the recommendations made. We’ve been in court 5x and on our 2nd final hearing!

I’ve always been advised to avoid court for finances unless you are worlds apart as the cost with erode the settlement - the only winners are solicitors and barristers!

@AustinRd - thanks for the advice.

Unfortunately, in our case we are worlds apart. I want to be released from the current mortgage so I can move on and buy another property. I can live with having my equity tied up until some point in the future (children are 5 and 8), I just want to be released from the current mortgage.

My wife doesn't work at all and has no mortgage capacity. She is insistent on staying in the house but she can only do this if I stay on the mortgage which obviously restricts my mortgage capability (I can't afford 2 mortgages).

I'd be interested to hear what a judge might make of this (any opinions welcome!).

We're in general agreement over custody of the children (50/50).

Well I'll tell you now my first husband contesting custody, maintenance, everything cost him £80,000 and me nothing as I was on legal aid.
he just kept going back to court over and over again and lost everything he owned.
Where is she going to live then, is it just your mortgage or joint, if so she will get at least half. I think it's unlikely you will be skipping off without any financial cares any time soon.

What is best for your DC’s is what the judge will consider.
Earnings going forward.
Your Ex will be expected to get a job and support herself so I hope she is aware of that.

I think it's unlikely you will be skipping off without any financial cares any time soon.

I'm not sure that's what the OP is expecting😳. If the childcare is 50/50, surely both parents need somewhere suitable to live? If that means the current house needs to be sold, then that's what will have to happen.

Well you certainly can’t be expected to pay for two mortgages regardless of whether it’s best for the children or not. And as your youngest is five then she’ll be expected to get a job to support herself. What are you looking for in regards to custody? You may have the option of staying in the house and being the resident parent

If you’re going for 50/50 then the sensible thing to me would be for your wife to move out into accommodation she can afford and then you split custody of the children.

Did the mediator not make it clear that the court is likely to boot you straight back to mediation. No judge wants you to see you argue over finances that are being rapidly spent on legal costs.

Why can't you just rent a place? You will get your share back in due course.

@madcatladyforever - it's a joint mortgage. I provide for her financially 100%.

There's no dispute over custody or child maintenance, I would quite happily pay more than the CSA amount to ensure the children have everything they need in both households. I've got a decent salary so I can provide for the children without any problems, I simply want an arrangement that is fair to both sides.

My argument is that it would be better for her to take the lion's share of the equity than a mesher order.

This way, she can support herself financially immediately. With a mesher order, she'll be financially dependent on me until the house is sold. With no job to support herself, there's no guarantee she would be able to support herself once the house is eventually sold. It also doesn't seem fair to continue to be on a mortgage for a house I no longer live in.

What I don't want to do is spend a fortune on legal fees.

You've said you're in broad agreement over child arrangements but that you are going to court over them, which doesn't make sense.

I had to do both child and financial court and it took ages (about 18 months for child arrangements due to complications) and it was expensive, especially as my ex appeared to choose the most expensive solicitor and barrister in the UK, lol.

Financial court did 2 hearings, FDA then FDR, but that was also expensive due to mountains of paperwork.

The problem you have is your ex wont want to change her lifestyle, wont want to get a job, wont want to move out of the house, so you are kind of snooker.

It's about both people moving forward from an equal position so all your assets need to be spilt so you both move from a position of equality. She will be expected to find some sort of job and apply for UC but it is very likely you will get ordered to pay spousal until she finds her feet. If she has no mortgage raising capability at all and no job to provide an income to rent then a judge isn't going to hoof her out so you can be released from the mortgage. I can't see how you can avoid a mesher order in this situation as she will be disproportionately disadvantaged otherwise. I presume you both made the decision that she wouldn't work and bring up your children? You say you can't agree but from your post it looks like you went to the MIAM and that's it. Have you not tried solicitor negotiation or used an arbitrator? I assume you are very high net worth as pointless going to court to spend ridiculous legal fees that may eclipse the amount of equity you are arguing about. Also how is she going to afford representation in court? Are you covering her legal fees too?

Thanks for the replies.

@youknowitmakessensedunnit - we are in general agreement over the custody of the children however are unable to agree on finances. Is it possible to go to court over only the finances?

@FlowerAndBloom - we went to the initial MIAM session. We also tried to discuss any future arrangements between ourselves. In the end, it was completely pointless. She will only agree to anything unless she is able to maintain the lifestyle she has now and is completely unwilling to compromise. I came up with several suggestions about how we might split the finances (equity, spousal maintenance etc.) but in the end, she completely refused to engage and would rather go through the courts.

There is around £200K equity. I have suggested she has an equity share that is more than 50/50 in her favour, which I think is fair given the disparity of incomes.

Even with a mesher order, she would still need to be able to meet the mortgage payments. Universal credit would barely cover the mortgage payment. She would have child maintenance payments from me obviously too but I think it would be a struggle.

If a mesher order is a likely scenario, I would rather just agree to that rather than spend a fortune fighting it.

I just want to resolve this situation in a way that is fair to both parties.

I'm not planning on funding her legal fees, she is planning on representing herself.

yep, child arrangements are completely separate to finances. You will probably want to get them formalized and signed off into a formal order in this case ahead of a financial hearing; you will likely get a better financial settlement if you can show 50:50 care

The thing is, as I understand it from my own experience, you can't simply be released from the mortgage and she takes it over.

My ex husband said to me one day "I'm giving you the house". Great!

But it isn't like that. I had to do a remortgage in my sole name, with 3 years self employed accounts (luckily I'd been self employed for years while also raising our children). My mortgage now has another 12 years added to it and £500 a month extra remortgage payment. Great gift!

Has she started looking for work yet? It is possible to get a mortgage on universal credit, wages and child maintenence, it just won't be very high.

So it depends on how much the house is worth what that equity equates to?

If for instance you gave her 70% as an example and then used the 30% as your own deposit would it be anywhere near?

Bear in mind both of your mortgage affordability will be reduced with the childcare costs you'll need to pay when she is at work and your's will take your child maintenence into account.

Really try and sort it in mediation and keep it out of court, the family courts are such a state.

Hello. Just thought I'd let you know if you do agree 50/50 (which I have with ex partner) then neither of you have to pay child support, regardless of incomes. I only know this because my ex who earns probably more than 20x then me kept asking me for money to go halves on extra curricular activities which I just could not afford so I had to find out what either of us was entitled to. The 50-50 care was agreed in mediation and there was no legal order but it was agreed by both. I'm not sure on finances in regards to spousal support as we weren't married

Thanks for the replies.

@Juanmorebeer - we have been separated for 18 months and she hasn't started looking yet. This is the dilemma I have. The mortgage is £170K and she readily admits that she is unable to take on the mortgage herself, even if she worked and claimed universal credit.

She is not interested in an equity split that is significantly in her favour, she just wants to stay in the current house.

So, I can see this being resolved in 2 ways. Either, progress this through the family court and risk losing some equity through legal costs or agree to a mesher order. If a court is likely to award a mesher order anyway, it might be better to agree that up front so we don't have to go to court.

I don't think a mesher ordet is ideal from her perspective as it just defers the problem for the next 13 years.

What do you guys think?

I think really she is in a shit position as her earning potential is really low after being out of the job market for so long. Even if she did get back into full time work soon (which is really hard if you have a gap on your CV) then the childcare costs will be so high that she will be paying out loads for care. Will you be meeting 50% of the childcare costs too? I think if you are going to truly do 50/50 shared care you need to realise that means you are liable for half of all the work and costs of raising the kids too, sure you are just pointing it out that you are in a much stronger position than her because of your job.

Those pointing out that no maintenence is legally due in 50/50 shared care then how exactly do you expect this woman to make ends meet?

Your ex wife does need to sort out her work situation straight away, would this possibly involve retraining after so long at home with the kids? Could you finance this?

I am just trying to think what I would practically do in the same situation and I think it would have to be sell the current property but split the equity in a way that enables her to get another property. How much are small family homes where you live?

It is really complicated in real terms as for instance if she moves out and rents somewhere with the kids on a short term basis and gets work and applies for UC, as soon as the house sells that lump sum will make her ineligible to claim UC, so she would need to reliably be able to secure a mortgage on wage alone by that point, so it would need to be a high enough amount, she'd need to be out of probation period and be there for at least 6 months before mortgage companies will even look at her application.

I can see now why she wants a mesher order, the other options are complete uncertainty and will be very stressful for her.

What do you think will be the best thing to happen for the kids? If they are used to having one parent at home all of this is going to be a huge change for them both all at once. Potentially two new houses, new childcarers and doing really long days with them from 8-6pm, when will they relax and rest?

@Juanmorebeer - thanks for your comments.

I understand your concerns. Firstly, I work flexibly and fit school runs/activities around my working day. This means in the future if she was working, I could handle childcare so there would be no need for nannies, carers etc. This was a deliberate change in my career in order to support my children better.

I understand it's not easy going back to work after a long break. However, we've been separated for 16 months and she hasn't made any effort up until now. I've suggested funding driving lessons for her, or paying for her to go back to college. But she doesn't have any career aspirations and hasn't applied for anything. She has not taken me up on my offer.

I've also asked her how much she needs per month to live on but she has never given me an answer.

Ideally, I'd like her to be able to stay in the current house but I just can't see how this is feasible. With the lion's share of the equity, she could afford a house to support her and the kids. But she doesn't want to sell the current home.

I'm at a loss as to how to progress this further. Any thoughts welcome!

I originally thought a mesher order would be a good idea for me but I was strongly advised against it as a) judges want to see clean breaks where possible and b) a mesher is just kicking the problem down the road. With a mesher, when the house is sold, even with more equity, your exW needs to ensure there is enough for her to buy something outright as she may be too old to get a mortgage. If you sell up now, and she starts to work she may be able to get some sort of mortgage now while she is younger and can pay it off. It puts her more in control of her future. It was the best advice I was given as it allowed me to get a chunk of equity, start again and buy my own (tiny) place.

If your kids are primary school age then the general expectation is that a parent can work 25 hours per week. When minimum wage goes up to 8.72 in April, 25 hours would equate to a take home of over £900 per month. She doesn't need time to retrain, she needs to get her arse into gear.

Entitledto and turn2us have useful benefits calculators which can help you understand how much UC she'd get for a given income. But spousal maintenance and/or a pile of cash from equity would both put the kibosh on a UC claim.

I'm in a similar boat, although more complex as STBX is in chronic ill health and self-employed but earning peanuts. Current bones of a plan would mean an income for her if £1800 pm - 1/3 salary, 1/3 UC and 1/3 "child maintenance" despite 50/50 care. Which would be enough for her to live on, but there are still issues with mortgage and house which are unresolved...

This is very complex, complicated by Ex refusing to get a job.
Is she waiting for the judge to order it or is she just burying her head in the sand hoping you can magically provide for all?

It appears that your wife is refusing to engage at all in the process. If that's the case then court is, unfortunately, the only way to resolve it. But it will be expensive and, if she refuses to engage with the court process, protracted and very expensive. If she was engaged just disagreeing with your position I'd suggest arbitration - cheaper way of getting a ruling and courts will accept it.

Have you had legal advice and are you following it? You might think you're being reasonable but does your lawyer agree? You're not being clear about the equity split, would it be enough for her to house herself and your children? If she has to move into rented that's unlikely to be very stable for your children and is often expensive compared with the current mortgage. So she might see staying in the family home as the cheapest option.

Divorce generally leaves both sides disgruntled as it's simply not possible to fund two households to the same level as before. Generally is better to work this out through mediation as a good mediator will help you work through the options so you know you've come to the most appropriate for you both that will work both now and going forward. Given you'll be parents and later grandparents together, working together to find a way forward can be a useful process in negotiating your new relationship as co-parents.

I would think that you both would need to submit Financial Form E. This will have yours and her pension on it too as that also has to be taken into consideration.

It was thanks to my XH rather large pension that l kept the house. But l had to prove to the mortgage lender that l could afford it before they would agree it

Thanks for the replies.

There is around £210K equity in the house.
House prices in this area start at £225K and around £100K for a shared ownership property. So, there is enough equity for her to be able to afford somewhere with a small mortgage if she were to take the lion's share of the equity.

The issue I have is that she is burying her head in the sand. She is expecting a court to enable her to stay in the house and for me to stay on the mortgage and pay 50% of the mortgage. I earn £75K, so a decent salary but not enough to run 2 houses.

Her own view is that she will not get a fair deal through mediation. She is expecting a fairer outcome through the family court. But speaking to my solicitor, she said going through the family court puts you 'in the lap of the gods'. I think the outcome from a family court could be unpredictable and potentially unfavourable to either side.

Any advice on how to deal with this situation is welcome!