Can anyone advise

[Eventhedogissad]

Can anyone advise on where I should go from here. I did have a previous thread - see previous thread here

We tried to work it out, but DH has walked out again. There will be another woman, but he's still denying it. I've given up caring, and the anger has settled in.

Anyway, to cut a long story short. We have a house worth £365k, with an outstanding mortgage of £160k. We bought our first house with a £25,000 deposit that came from me, it was solely my money. We have about £40k to pay off for car loans/home improvement loans and 2 small credit cards. I have two DDs at home. One is 18, living at home whilst going to Unit. The other is 16 and still in full-time education.

I have a full-time job, but earn a lot less than DH as I gave up work when the children were young to stay at home with them.

Where should I start negotiations? I have no idea, and I have no money in the bank to pay for a solicitor. Do I freeze our bank accounts?

My head is a muddle, and I just don't know what to do. Any advice from anyone that has been there would be great.

Thank you.

Most family solicitors will give you a free first consultation, so how to pay them can be your first question.

Theres a website called wikidivorce ? Not sure of exact name, which has good info.

@Isheabastard Thank you for your reply. I will have a look at that website.

I spoke to a solicitor yesterday for free advice. But they would only confirm what my options were in relation to agreeing a settlement i.e. we could agree, or get a solicitor to intervene.

Without full financial disclosure they wouldn't advise what my starting point would be with my exDH, if we were to try and reach a settlement amicably.

When a solicitor only provides free advice, it is going to be of limited use because they simply don't have the time to fully analyse your case. You're essentially a marketing exercise, but it's billable hours that puts food on the table (by extension, it's not unheard of for solicitors to suggest a best or worst case outcome to try and secure your business). Also, every case rests on the facts and facts are unique to each case so if for example you wanted an idea of a likely outcome in court then they can only roughly approximate what that might be. On top of all of that, the vast majority of divorces never go to court and for most family solicitors their work is more administrative than it is adversarial (i.e. drawing up consent orders that work as the parties want them to and advising of any potential risks, rather than building a case).

It's also - except in high net worth cases - really not worth going to court. It is unlikely any benefit of doing so will outweigh the costs involved. If there are children involved, the adversarial nature of a court battle also negatively impacts them and makes it infinitely harder to co-parent afterwards. Similarly, ongoing ties (e.g. Mesher Orders, spousal maintenance, charge backs, transferring homes but with only a best endeavours to release the other from the mortgage etc) are generally better avoided except as a last resort. People's circumstances change over time and ongoing ties are the perfect breeding ground for resentment and ongoing conflict.

A successful divorce then should not be a battle but a negotiation and ideally you want a clean break as soon as possible. What that settlement looks like will very much depend on both of your needs. These needs will be "generously interpreted" but contrary to some of the views expressed on this forum the courts are not particularly interested in equality. Yes, there is a principle to put both of you on an equal path to independent living, but don't expect for example a share of an ex-spouse's future income just because they earn more than you.

The information that you provide is quite limited but as a general idea:

1. 18 year old at university is irrelevant because they're an adult;

2. Your housing needs will probably be assessed as a two bedroom flat. If 50% of the equity plus your mortgage capacity is enough to buy a flat (in a cheaper area if necessary) then you'll get 50%. Possibly slightly more if you need it to meet your housing needs;

3. That said, there could be a case for a 2 year Mesher Order to stay in the FMH because of the 16 year old (to live there until they finish A-Level), but don't necessarily count on it especially if there is enough equity to meet housing needs;

4. You already work full time so any kind of maintenance other than child maintenance is very unlikely. There would need to be a huge discrepancy in net income after you had maximised your own earning capacity and you would also need to prove you missed out (in my case, my ex-wife tried to claim this but she'd worked in low level office admin before children and whilst she had missed out on earnings whilst being the primary carer - justifying a fair split of assets - she couldn't prove that her future earning capacity had suffered because of the marriage).

Even if you prove all of this, unless your ex-spouse is earning well in excess of £100k the amounts you receive probably wouldn't justify the legal fees to get it. As a rule of thumb, it just isn't ordered when the primary earner earns less than £60k and even where spousal maintenance arises, it is very unlikely that a payer will hand over more than 25% of their net income above that amount (including child maintenance) and probably for no more than five years. That's not going to be a lot of money.

5. If equity is split 50/50 in the house, then a pension share of 50/50 of what was accrued in the marriage would also be appropriate. If you need more of the equity, he will have more of a claim to keep more of the pension.

The nuances of your case are what will decide it but ideally you want to negotiate it and agree outside of court to keep fees down and get an agreement that works rather than one that is imposed. As you both work it sounds like a 50/50 equity and pension and clean break divorce to me.

@Eventhedogissad

Guides are here www.advicenow.org.uk/tags/separation-divorce-and-dissolution-civil-partnerships

Some people are litigants in person and get legal advice as they need it, others engage a solicitor / barrister to represent them. More on where to get legal advice below.

Re – Divorce and Financial Settlement
There are 2 aspects - divorce and financial settlement.
The divorce aspect is usually straightforward, financial settlement usually more complex.

To know what a fair split of assets is and to reach a financial settlement divorcing parties need to know what the assets of the marriage are, and what each asset is worth.

Full and frank disclosure is a legal requirement.

What does full and frank disclosure look like?
Look at a Form E. A long document in which each party sets out their assets, income, and financial needs. You can see in it the assets that are taken into consideration upon divorce and financial settlement, for example property (the former marital home), pensions, savings, stocks and shares etc. It also lists the documents needed that show the value of assets for example CETVs (cash equivalent transfer values of pensions - which can be requested from pension providers). Form Es are exchanged – both parties fill them out, attach the required documentary evidence and send them to each other. Form D81 can also be used. Mediators, if used, usually ask parties to fill in Form E.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1128798/Form_E_0123_save.pdf

https://www.gov.uk/government/publications/form-d81-statement-of-information-for-a-consent-order-in-relation-to-a-financial-remedy

Gather all the financial information so that informed decisions can be made.

What are the assets worth?
To find out what some assets are worth an independent expert can be used. Property can be valued by an expert - estate agents/surveyor, pensions by CETV and / or a pension on divorce expert (PODE/actuary) report and so on.

It is important to decide what needs a valuation by an independent expert and factor in the costs of these.

Pensions can be very valuable – equivalent or more than the value of the former martial home in some cases. Divorcing parties might hold different types of pensions (not like-for-like, so difficult to compare without an expert). Circumstances might be complex for example an age difference or pensions in payment. One party may have stayed at home to look after children.

An actuary can do an in-depth report on pension sharing - what capital and income would be if split 50/50 or a percentage of choice. They can be instructed to factor in retirement ages of the parties. Joint instructions are given to the actuary and they walk parties through the process.

Who gets what?
When deciding how to distribute a couple’s assets and income the court must apply a checklist of factors set by statute. The relevant statute is section 25 of the Matrimonial Causes Act 1973. These factors will need to be applied in every case, regardless of whether you are engaged in court proceedings or negotiating your own settlement. These are often called the Section 25 factors, which the court will consider when deciding how to distribute assets upon divorce or dissolution.

Section 25 Factors
www.legislation.gov.uk/ukpga/1973/18/section/25
images.ctfassets.net/o8luwa28k6k2/2cpp2mEMwBJWJLuzTiTruB/b5397e7459154fad8927826a2c99acdd/section-25-expert-guide.pdf

The income, earning capacity, property, and other financial resource which each of the parties to the marriage has or is likely to have in the foreseeable future is considered.

First consideration is given to the welfare (while a minor) of any child of the family who has not yet attained the age of eighteen.

The needs of each divorcing party are considered and as I understand it 50 / 50 is the starting point – so unequal shares based on circumstances and needs is possible, for example 60 / 40.

Not getting full and frank disclosure?
It is vital to get all the assets “on the table” so that informed financial decisions can be made and a fair/just settlement negotiated.

Full and frank financial disclosure is required and usually provided when Form E is exchanged.

If after Form E there is missing information / documentary evidence ‘Questionnaires’ may be exchanged to retrieve it – a list of questions and a list of any missing documentary evidence required which is served on each party.
If still missing after that, ‘Deficiencies’ are exchanged – questions can be asked to clarify and al list of required documentary evidence still missing.

A solicitor’s letter can be sent to retrieve financial information / documentary evidence.

A Court Order can also be applied for to gain financial information / documentary evidence / valuations that are missing / essential.

Advice and info
These offer a free advice session about pensions on divorce and separation www.moneyhelper.org.uk/en/family-and-care/divorce-and-separation/divorce-or-dissolution-how-we-can-help-with-your-pension
Free advice line (busy so keep trying) rightsofwomen.org.uk

Guides on divorce and financial settlement
www.advicenow.org.uk/divorce-and-separation
www.advicenow.org.uk/guides/how-apply-financial-order-without-help-lawyer

Pensions on divorce
www.sharingpensions.co.uk/penaudit3.htm
www.mediateuk.co.uk/the-ultimate-guide-to-pensions-on-divorce/
www.nuffieldfoundation.org/news/new-good-practice-guide-addresses-shortfall-in-understanding-of-how-to-treat-pensions-on-divorce

Valuation of pensions – pensions on divorce expert report (actuary)
www.collinspensionactuaries.co.uk no relation – useful website
www.collinspensionactuaries.co.uk/pension-data-collection/ templates for information required

Mediation
Mediation can be used to reach agreements.

Some cases are not suitable for mediation e.g., domestic abuse/bullying/coercive control.

www.gov.uk/money-property-when-relationship-ends/mediation
resolution.org.uk/looking-for-help/splitting-up/your-process-options-for-divorce-and-dissolution/family-mediation/

The First Meeting with a Mediator – The MIAM
www.familymediationcouncil.org.uk/family-mediation/assessment-meeting-miam/
“The mediator will tell you whether your case is suitable for mediation, and you can decide whether you want to proceed with mediation or explore another option for resolving issues. The mediator can also give you information about other services which provide help and support.”

Legal advice
This link gives you an indication of hourly rate for solicitors
www.gov.uk/guidance/solicitors-guideline-hourly-rates
Some organisations offer free advice from solicitors and barristers rightsofwomen.org.uk/get-advice/ On their FAQs page…”Our Legal Officers and Volunteer legal advisors are all solicitors and barristers”.
Some family solicitors offer an in initial free consultation and some a fixed fee rather than hourly.
Some barristers can be directly instructed e.g., via Clerksroom Direct
Mumsnet suggest www.advicenow.org.uk/tags/separation-divorce-and-dissolution-civil-partnerships

You need to start mediation. This is where you can confirm assets and liabilities. The origin of the money for these assets is irrelevant given how long you are together. The deposit won’t be protected anymore than his extra contributions to household expenses.

At mediation you will also start to define your needs. Essentially housing, income and pensions.

Housing: you need a property for 2. It can be rented or owned. You need to assess what the cost will be. Then how much mortgage you can raise to live there. He can challenge that and produce evidence of cheaper and more affordable properties. His mortgage potential is higher than yours. He will need less of a deposit

With 50% of the assets plus your mortgage borrowing, can you afford a property. This is were you can argue for more of %. If property isn’t affordable you may need to rent.

Income: you have an income and will receive CMS for the youngest for 2 years. Spousal support is unlikely unless there is a huge income disparity. If you are FT then that should meet your needs.

Pension: you don’t have them so they can’t be split.

By the sound of it you have assets worth £160k. You might be able to about £100k of that. If he has a new partner then he might be able to settle for less.

It’s not a greatly complicated situation. Mediation should resolve most things if you are both realistic and park your anger at the door. Divorce Won’t give you revenge or any other kind of recourse. It will just split up the money based on what there is and what you both need.

in your shoes I’d crack on with things before the 16yo reaches 18 and your needs reduce.

My advice is to talk to your stbexh m. If he's a reasonably decent man and feels guilty he may be willing to offer a much better settlement than the court would order - remember couples can choose to have different arrangements than the standard.

Don't go in all guns blazing, state categorically that whilst you are sad it's come to this, all you want is to ensure your dc aren't disadvantaged. We did this and waited until youngest graduated to sell and I'm about to get my divorce through 4 years after we split.

Thanks for all your advise, everyone. I will have a look at all the resources mentioned.