Mediation

[PocketSand]

Had my MIAM session with mediator and feeling quite hopeful. She asked was I thinking of spousal maintenance and when I said STBEX wants a clean break etc she pointed out that the court would need to satisfy itself that the financial order was fair. And in our particular circumstances it was far from fair. And that despite my fears of anger snd punishment from STBEX the court would not sign off an unfair agreement.

In what way is it currently unfair ?

If the mediator is a trained solicitor in family law and with lots of experience in court they could be worth listening to. However, if they are not legally trained I would be very wary of what they say. We have certainly had clients who ended up in court because of a bad mediator.

Unfortunately I doubt they were legally trained because what they suggested isn’t quite right. Spousal maintenance is based on need, not fairness, and is paid to avoid undue hardship. A judge who ruled that SM was payable to make things fair would be one we would recommend paying clients appeal against.

On a more practical note, I would only pursue SM as a last resort. If people don’t want to pay it they will find a way not to do so (e.g. quit work, sell a business, decide they want to change careers, disappear abroad, go bankrupt, surveil your house for cohabitees, challenge you year after year to explain to a court why you still can’t support yourself). It’s better to get more than half the assets in the hand than rely on an income from a reluctant payer.

Sorry, fair was my comment. I meant it was unfair because there was a surplus on his side and deficit on mine that I am not able to rectify due to caring responsibilities - I have been full time carer to our adult son for around a decade and was financially dependent whilst married.

However, given that I can receive my share of public sector DB pension from next year I am more interested in greater share of assets than SM which I do believe he would find ways to either not pay.

We have both been separately advised that we need a Pension Expert on Divorce in addition to CETV and am happy to go with share experts suggest. Hopefully this share will be sufficient for the courts to be satisfied that I can afford to meet living costs.

If you are that close to pension age it might be the better option yes. As with SM he would almost certainly retire before or immediately after a final hearing and seek a downward variation.

I should just add, fair or unfair are irrelevant terms when it comes to spousal maintenance. It is paid if 1) there is a need to avoid undue hardship falling on the recipient and 2) the payer can afford it. Invariably reluctant payers find ways to not afford it sooner or later.