If ExH took money out of pension ...

[medianewbie]

Divorcing uncooperative abusive exH via my (rubbish) lawyer. In Scotland.
Last autumn we both had Minute of Agreement all agreed (by email). It was then sent by my lawyer to exH Pension provider who returned it to my lawyer saying 'strike out the 'when exH retires' line as he already has'. Lawyer sent this to me as an attachment on brief letter saying 'need to strike out section 7'. No further comments. I agreed it.
Crucially I didn't question this enough. (I've two disabled children & I'm also disabled, I struggle to get through each day tbh & sometimes miss things).
The Divorce part is about to go through which makes the Agreement unchangeable. I now have concerns that exh removed £ from the Pension just before the Agreement was finally signed & witnessed. Should the Pension provider have told my lawyer? If so / should my lawyer have asked / told me? Am I just totakly stuffed?

Clearly I've not been sufficiently on top of this. But my lawyer has been rubbish (tried to convey house into wrong persons name, messed up my legal aid twice over & generally really poor) so I'm very worried. Not only may exH have taken a chunk out but it might mean I have to start drawing pension & lose right to take out my 25% tax free.

Can anyone advise?

I can't advise as not a Scottish lawyer but if it turns out that you're right and your lawyer has failed to advise you properly, you will have a negligence claim against the firm of solicitors. Their PI cover will cover this and insurers usually want to settle claims.

The problem, potentially, is that if your financial relief proceedings are concluded, how you will get evidence of whether or not he did take money out of pension. You should have had disclosure of his financial assets including pension in the proceedings, and that disclosure should have been updated periodically. I'd expect it to be updated shortly prior to signing a consent order, which would have revealed to you if he'd taken a lump sum. Did you get this disclosure?

Hi @Elektra1
Thank you for replying. No, I didn't.
The fact he had retired was only communicated as an attachment. There was no discussion of any effects or changes to the (what should have been still a joint?) Pension 'pot'. The Minute of Agreement , signed within 2 weeks, refers to a CETV figure which it says 'will be shared equally betweenthe parties'. It gives a specific figure, but I now suspect that's half of the pension after he'd just taken some £ out.

Surely if he has taken some out it would show in his bank account? Make sure you get updated bank statements from him before signing anything!

I really don't understand how this works but if I was in your shoes then I might ask a different law firm for a one off consultation to look over a financial agreement document (cover all references to your crap solicitor and copy it) and see what they say. A second opinion.

I’m not sure there’s much that can be done now either way to be honest, you’ve signed and agreed it so it’s unfortunately too little too late really.

If you’ve been badly advised by a solicitor then at this stage your only comeback would be going after them for failing to correctly advise, but the pension etc is all agreed, signed & witnessed at this stage, it’s most likely too late.

@Soontobe60 - it's already signed.
And exH was abusive & uncooperative, there is no way he will provide bank statements. I've relied on my lawyers. They've already made 2 big mistakes so I'm really worried. I'm on Legal Aid & don't have £ for a 2nd opinion. I will have to hope its ok (& use legal cover under house insurance if not?) but I'm trying to find out if pension Co should have told them / they should have asked? I think they should have ??

If it’s already signed it is a done deal.

The problem you have is with your legal rep, at this stage the only likely comeback you have would be to go after them for failing to do due diligence (although there is an element of you should have done that yourself/checked it all yourself), or for advising you incorrectly, but neither result is going to change the deal at this point, you just may be entitled to compensation from your legal.

You need a second opinion though, to find out where the problem lies.

@Mrsttcno1 I take your point but how could I know he was removing money? I don't have access to his bank statements & the pension Co shared info with lawyers not me. How could I know? Isn't that what lawyers are for?

How old is your exH?

60

You should have seen a copy of the statements with this information on, it’s part of the financial disclosure. You instruct your lawyers to act on your behalf and in doing so you’re trusting them to do what they need to do & to protect your interests. If you don’t believe they have done that then you can get a second opinion, make a complaint against them, which is where you are at now.

You received legal advice, on that advice you signed & agreed. That is done now. If you now believe your legal rep was not acting or advising appropriately, your recourse is against them now.

He may not have taken the money as a lump sum but as an annuity so a monthly pension income. Does he still work?

Are you saying that you reached a financial agreement without seeing ANY financial disclosure? Or that you had some but it wasn't updated?

@LucyfurMorningstar I think he's done both.

@Elektra1 it's been going on since 2022. The the lawyers asked me to provide 3 house valuations which I arranged & he & they accepted. I was asked to provide his pension CETV (I had to ask him & this was slow & difficult). He still considers it HIS £.
I didn't hear back from lawyers. They later provided a 'schedule' with those basic figures on in March 2023. It hasn't been updated since no. The letter with attachment re retirement was sent last Oct. The Agreement was signed 2 weeks later. I think he took a chunk of money out in those 2 weeks.

So the only disclosure you've had is a CETV on his pension and you provided valuations for the house? What about bank statements and any other investments or assets (such as a car)? What sort of pension does he have (defined benefit/defined contribution) and what was the CETV?

Well if the pension is half yours why can’t you ring up the provider and ask how much it’s worth and judge from that figure if you think he took some out in those two weeks

or go back to the solicitor and ask for clarity - you do need to give figures for the worth of things

@Elektra1 yes. No other real assets but no bank statements AFAIK. Pension is mix of both kinds (LA pension).

@Quitelikeit because the pension % is agreed. I have 'my figure'. It's signed. But it doesn't actually technically split until Divorce finalised. Pension Co cannot speak to me till then. At that point, Agreement cannot be changed. Lawyer is totally useless.

I'm no expert on the matter but depending on your husband's age, a LA pension is likely to be defined benefit. It is well known that CETV values are useless for negotiating the split of a DB pension and you need a specialist valuation of the future value of the pension in order to negotiate whether you go for a pension sharing order or whether you trade your interest in the pension for more equity from the house.

If your solicitor did not advise you of this then I'd suggest you may have been negligently advised.

Why is it that you think he took a lump sum out immediately before the consent order? Do you have any evidence or is it just a feeling? The duty of financial disclosure is ongoing and if you have concluded a financial split on the basis of disclosure suggesting the pension CETV was, eg £400k but in fact it's now £300k because he took £100k out, then that would be a breach of his duty of ongoing disclosure which could entitle you to have the consent order varied.

All of this requires some legal advice of course, and you don't have money to pay for that. In the first instance I would ask your solicitor to provide details of who in the firm to complain to, and write them a letter setting out what your complaints are, e.g. your solicitor didn't advise you that you should obtain proper financial disclosure, didn't advise you on the difference between CETV value of pension versus adjusted CETV value, and did not advise you to seek updated disclosure of the pension assets immediately before signing the order, so as to be sure XH had not depleted those assets, which you believe he has - you'll have to say what the basis of that belief is otherwise it will sound a somewhat speculative complaint.

You'll also need to say what it is you want, ie what do you think your financial loss is?

@Elektra1 I think he took about 20k lump? (He had some debts to pay & it's his money etc) The last legal papers were just signed & sent - he had to sign to say he wasn't bankrupt & that he renounced right to be in house (the house has been put into my name as it was agreed that I & kids need the security & there is basically NO equity in it at all. It's on an interest only mortgage due up in 5 yrs)

I sent a letter last month as they sent exH papers for house to go in HIS sole name. He was on holiday for a month. They re-sent it, this time copying me in & I saw the error then. I got an 'oops, human error' brief email reply.
I sent a letter last week as they obtained legal aid for wrong kind of Divorce (re kids ages). ExH saw that, ranted at me, I contacted LA who confirmed lawyer error. I notified them & got reply to say: 'error re kids ages' (lawyer has birth certs) but 'they won't charge me for this. They are a total joke. THANK YOU for suggesting what I should query with them. I fear its too late & I'll need to prove negligence. I will write today. My half of 20k is 10k - a lot to me on Carers allowance - this should have stayed in my pension. Also I was relying on drawing down 25% tax free to help pay down mortgage in 5 yrs.Because he's drawing his pension & has probably taken out 20k I poss cant.

Further nonsense.

Lawyers asked me to apply for Legal Aid for Divorce. I did & was awarded it.
exH called to say he'd been copied in by SLAB & that details were wrong.
I called SLAB & they said 'lawyers have ticked wrong box re kids ages'.
My LA was cancelled & I now have to pay for the Divorce (ho hum!)

I was then sent a 'simplified divorce' form (kids are over 16 now). I cannot easily travel to my lawyers so I've been told to go to nearest Notary Public with it, sign it, get it witnessed, send it back to lawyers & they will send to the Court.

Meanwhile, I got a bill for drafting the Minute of agreement which I was initially told was full LA then advice & assistance (so £1K) it was agreed that I would apply to the SLAB for their hardship fund. I filled out all the forms & returned them to the lawyer as requested 8 weeks ago. SLAB still do not have this info.

I wrote to lawyer on the 9th querying this, also asking whether all was ok re the pension as I have not heard from them & this was ignored. I emailed again to say did you get email of 9th & just got a reply: 'yes we received email of 9th'.

So, I guess I now write to the Client relations person, then to the Ombudsman as
this laywer is clearly completely incompetant.