Go to court or settle on this?

[FurryTailOfNewYork]

Hi 👋 I have to decide this weekend whether to accept my STBXH offer or go to court.
I have two rented out studio flats that I acquired before the marriage and also a smallish premarital pension pot.
After the marriage we bought a small
home together and continued paying the mortgage together, but I solely paid for both the deposit and also for two big lump sums over the years in order to reduce the mortgage, all amounting to 180k in total.
We also have a business which we own together as directors.
This is barely profitable and likely worth very little after all suppliers and outstanding debts are paid. STBXH works every day in this business and pays himself a basic salary and a small amount of dividends.
I don’t take any dividends from it.
I have a daily job elsewhere, which pays a bit more than what he earns from the business.
since we married 7 years ago, I have also accrued a not particularly large pension pot in this job

Husband would like me to hand over to him both the business and the family home since he is older and can’t easily get a mortgage and he has the kids 50/50.

he says the bank would approve for him to stay as sole mortgage holder on the existing mortgage on the jointly owned family home.
I am renting and live with my baby from new partner and have the kids half the week.

my solicitor says that it seems too generous to give away almost 100% of the marital assets (apart from pension).

we have two young kids together and I have a baby with my new partner (not cohabiting).

do you think I should leave the family home to which I contributed much more and the business to him?

i know going to court could be painfully expensive for both and we can barely afford it and potentially bring an undesired outcome, like forcing me to sell one of my studio flats which provide a small but helpful rental income or to hand over to him one of the premarital flats.

ideally I d like for him to keep the business, then we sell the family home, which is worth just under 500k, pay some of the debts from the business, to make sure it s steady and healthy for him, pay off the outstanding mortgage and then split the rest of the money from the house sales between us (about 100k each)

he is fiercely against this and has stopped talking to me.

we have a court date in July if we don’t agree between us now.

would you agree with him?
the reason for me leaving was that sadly he is on the spectrum and had become very unsupportive and critical when we had two very little children, one of which has SEN, and I felt very isolated while working and doing all of the childcare

Why don't you want to sell the flats, not least to finance a better property for your now-family to live in.

What if ...
he gets the business (& its debts & profits)
sell the flats & you divide the proceeds; you can use your share to help buy a better property ; he uses his share to get a mortgage he can afford
He buys you out of your share of house with his reduced mortgage... you use that buy-out to buy a better property for your now family

I guess Mesher order on house sale (he stays in it) is an option, too.

Thank you. I ll think about this option. Isn’t it morally wrong to sell the studio flats if they are premarital and hence ring fenced?I d have thought (hoped )that they shouldn’t be part of the marital pot?

I am really struggling with my SEN child and I am not that young anymore (mid forties) so I really appreciate the security that comes from a steady although small rental income and the flats are gaining value over the years (good location)..

I think I d almost prefer giving up the family home and the shop then selling..

lots to think about
thank you

Is there not room for negotiation? Are your only choices accept his offer, or go to court? He might have stopped speaking to you, but that's not really an option if you're going to reach an agreement as quickly and cheaply as possible. If you're both as fiercely against each others proposals then a middle ground would usually be the way forward.

I don't know have any advice for you on the settlement, other than listen to your solicitor as they've seen this 100 times before, and think very carefully about what you're agreeing to now for an easy life to get it over and done with, you won't get a chance to go back and do it again. What will work best in five years, and in ten, not just whats the easiest way to get it over and done with right now.

Thank you so much for your wise words. I think he is resentful about the fact that I have moved on and have a new baby and seem happy, so that doesn’t help the negotiation.

He uses accusatory language and seems really angry (but so he was during the marriage, probably related to being on the spectrum and anxious).

he says he is worried that our young children would struggle if the family home is sold, whereas I am of the opinion that they can adapt and it s not a valid reason for me to give up the almost entirety of the matrimonial pot over to him.

my solicitor says there is no guarantee but the prematrimonial assets should be most likely safe and ring fenced, provided their dad can provide for them and their financial needs are sufficiently met.

Can't you make a counter offer? Is it really as stark a choice as accept now or go to court?

I would be disinclined to settle for that personally. Is a mesher order until youngest turns 18 or 21 an option? His housing needs will reduce then.

Why does he feel he should get both the house and business if you have the kids 50/50. Why can’t you have the house with the kids if he doesn’t want them to lose it. Let him have the business. You paid the deposit and a chunk of the mortgage? 7yrs isn’t long and you seem to have had care of the children also (so not like he sacrificed his career for the family). I don’t understand why he feels entitled to it all basically and why you would consider giving it to him.

No, I wouldn't agree to that. Too generous on your part.

Thank you, this is so helpful.
I was starting to doubt myself and almost accepted today.
my offer has been to sell the family home , pay some of the big outstanding bills the business has, pay off the mortgage, split the remaining money from the house sale equally between us.

sadly he says he won’t accept this option, saying it will make the kids homeless (whereas I think he could afford renting like I do and it s not as tragic).

Thank you so much for the suggestion that I could live in the family home. I always dismiss it as I have bad memories of my time there plus he is so dead against me having it, saying that it was my choice to move out, but it s however a valid option

Absolutely 100% no I would not agree to that.

I typed a long response an internet went down. Basically your solicitor sounds weak. Get everything valued do your mediation sessions and then see where you are. Court is a last option.

How long were you living together/ married? How old is he?

The pre marriage assets can be part of the split if required to house both parties.

@FurryTailOfNewYork please can I ask how you managed to ring fence your pre-marital assets? I’m going through something similar and it’s agonising.
When you refer to ‘court’ do you mean an FDR hearing or a final hearing? If it’s an FDR I would be inclined to take it there.

Thank you so much for the advice to keep disruption to a minimum with the kids.
that s really important and why we are not at all in a rush to move in with my new partner.
Husband is late fifties, he can be very evasive. We made an offer via my solicitor more than a year ago, but husband never replied and only let his views known to me unofficially via SMS, not via solicitor.
He can be unmovable and strict with his decisions. He never disclosed his full assets, while i made every effort to send everything required on Form E. for example lots of info where missing, incomplete bank statements, one bank account was not declared, etc

Before I applied for a court hearing (it s not an FDR but a proper court hearing where court makes a final decision), I tried to sit down with him to discuss option but he wasn’t open to that.
My solicitor sent me to a mediation meeting (this was on my own), but the mediator said our situation is complex and unsuitable for mediation, since the business has a bank loan that is backed by the family home as a sort of guarantee, so the two are hard to sell separately or assign to one of us separately as they are tied by the bank guarantee, unless the loan is repaid (in few years).

my solicitor says that the premarital flats can absolutely be part of the pot if needed to house him.
however it s not clear whether this is the route the court will take. He seemed to have an ok salary and could rent.
The business is breaking even after he takes his basic salary and his moderate amount of dividends.

Thank you for your words everyone 🌹

Does the length of marriage make a difference on the court decision?
we have been married seven years now but I moved out two years and a bit ago.
we had been living together two years before the marriage. So we lived together about 7 years of which 5 as a married couple.

I think I would take the risk with court. He seems to be making all the demands and none of the compromises.

Can you demand cash if 100 -200,000 if he keeps the house and you the flats -assuming he hasn’t declared all his assets and some money is in his account?
Does he have a pension pot? Can he pay you a share ?

The fiats will be included if there’s not enough to meet both parties needs by their exclusion. It’s a big risk to assume they will be excluded if it goes to court -likely they won’t be

it’s difficult to say here because the total assets and debts are not clear to me but as he’s older and has children 50:50 there’s a good argument to say his needs are at least as high as yiurs in making claim to the assets

Thank you for the fair point about cash. Possibly one of the reasons why he hasn’t officially replied via solicitors in more than a year is that he is maybe waiting for time to pass (I speculate) so that the required last twelve months bank statements won’t reveal that he potentially moved any money he might have out into another account.
He wasn’t very transparent about money during the marriage and very evasive about the business, calling me a nag (or worse) for wanting to understand the cash flow and debts of our business.
it was sadly the cause for lots of arguments.

He doesn’t have a pension.

I m inclining to take the gamble and go to court, and hoping that in the worst case he indeed keeps ‘just’ the house and the business, if the court deems his needs high.
hopefully i won’t have to sell or lose one of the flats. They do provide me with some security, as I m feeling a bit fragile and exposed, with a baby and working long hours (I had a panic attack where I couldn’t breathe and just crying uncontrollably since husband has been very angry about me not agreeing to let go of the family home and business.
his moods still affect me. He has just told the kids they will be homeless and their mum is putting them and dad on the pavement. On a friend’s advice who has been through similar, I asked my solicitor to email him that this is parental alienation and he shouldn’t involve or worry the kids unnecessarily, which hopefully will put a stop to this behaviour)

Did income from the flats ever contribute to your family income pot? Because that might affect the ringfencing.

If the business doesn't have much of a financial value apart from income it might be considered similar to your future income, so not really an asset of value, so be prepared to argue the opposite.

Make it clear that you believe he has hidden assets and accounts, courts can go back further than 12 months if they think there are hidden assets. I'd be tempted to hire a financial investigator to make sure he is being honest. Perhaps the threat of it will make him back down, and agree to a 50/50 division of the house.

What makes you think he will have the children 50:50 when he left you with all the childcare during your marriage?

I would go for exactly what your solicitor is suggesting as your STBXH has also been benefitting a hundred percent from your joint business. Let him buy you out of the FMH do not give it to him when you put the deposit down and jointly paid for it. No way.

i would not add premarital assets to the joint pot, he doesn’t get to claim more as he sounds like he had very little financial or family input in anything everything landed on you.

As he’s being evasive over money I would def take the court option - they can force him to declare everything if needs be.

I’ve just been through a divorce and several times it was v tempting to give him what he wanted to get it all over with, but there’s too much at stake so hold on to your resolve, for you and the kids.

All I’m going to contribute here is to say that there’s no guarantee the court outcome will go your way, however strong your case. I had a very strong case - I know the law and got three legal
opinions as well that confirmed this.

On the day, it was obvious from the word go that the (female) judge took my ex’s side and it went entirely in his favour. We proved that he had tried to hide assets - she accepted it was an “oversight”. She even allowed arguments from his barrister that his side hadn’t disclosed they were going to use, so we had no chance to rebut. I knew that court could be a bit of a lottery, and I saw it for myself that day.
In other words, however strong your case, don’t assume you’ll “win”.