What should i do about financial settlement? Please help

[WildRaven]

Hi all

Just to put you in the picture, STBEx-H and me separated nearly 3 years ago. We have two DD, 6 and 9, and owned a house together. He moved out after we split and me and DDs stayed in the family home for nearly a year until we sold and moved into a new house. I have a mortgage on my new house in my name alone.

Until I sold our old house ex-h was paying half the mortgage cost. Since we split he's also paid maintenance and has DDs 3 nights a week. He works shifts and can't have them more than that but is trying to change it so he can have them 50/50.

I've started the divorce and can apply for the final order now. He says we need a financial consent order but if we've agreed everything why do we? When the house sold he agreed I could have all the money in it and so I put that towards my new house. He pays maintenance and we both pay half of all clubs, clothes etc.

Why do we need any of the financial stuff if it's all be agreed? It feels like he's trying to pull a fast one on me and make it so I have to have less or something.

What would you do?

You can have your informal agreement drawn up as a consent order fairly cheaply but that is not your main problem. Taking into account living together before you married and post separation period, how long have you been a couple?

Obviously income and earning potential is a factor as is child care before and post separation, but who left who is not a factor, and starting point is 50:50 split of marital assets including equity in marital home and pension.

You made it sound like ex is a very high earner and could afford to gift his share of the marital home and pay maintenance over the expected level but now you are saying he rents and can’t afford to buy a mortgaged property.

You are in a bind. A judge is very unlikely to sign off a consent order that awards you all assets and leaves your ex renting and paying maintenance with an almost 50:50 split of overnight care and 50:50 split of additional child related costs. On the other hand if you apply for final divorce order without a financial order you remain financially tied to your ex for life. You may pay 100% of the mortgage on your new home but legally it remains a marital asset.

It’s not about what you think is fair but what the court thinks is fair. There are all sorts of unfair agreements but once you get the court involved, and ex wants a financial settlement, you lose control to define what is fair. Ex could also get a court order to prevent you applying for final order before financial order.

I don’t know the dynamic - maybe he was happy to be generous whilst you were married but separated and still had a financial interest in ‘your’ house and pension but now that you have filed for divorce wants the financial position formalised.

OP you’re looking at it all wrong. In law he doesn’t ‘owe you’ for walking out. Marriages can do fail for a number of reasons and it’s rarely 100% the ‘fault’ of one party. The law doesn’t look at fault it looks at need. There are two parts to divorce, the second is settling finally all finances. Yes it’ll cost but end of day the person who would benefit is you. The whole point of financial disclosure is to ensure you both know each other’s financial position in full before deciding. The starting point is 50-50. Housing the children until 18 is priority but there are other orders such as Mesher that can be made. You make the mistake thinking that its both of you that can decide between you, which you can but as all are at pains to highlight it means nothing in law until a Judge signs it off and is satisfied it is broadly fair. Even if you have in writing we agreed x, whilst it will be a material consideration you’ve agreed, each need independent legal advice including to stop one party getting what law deems an unfair split. It can happen one gets 100% but if they’ve been put under duress (guilt trip included) it can make it a difficult case (but not impossible) to argue. MN has given you good advice. Be up to you if you want to risk losing your home as that’s the bottom line and take it. If he loses his job he’s perfectly entitled to come for ‘his share’ plus none of us know if he may have more assets than he’s disclosed. It is a bit concerning the narrative that he owes you. You built up joint assets and high earner or not he’s likely entitled to something with parity reached elsewhere.

The reason op that a judge needs to sign off the % split, will be for cases of abuse, ie in case one party has abused/coerced/manipulated the other in to not a fair split.
it’s a good idea

Even if you were divorced without a clean break order he could still come back in future for a share. Drafting a consent order is not expensive. He’s entitled to delay the divorce as obviously doesn’t trust you to sort it out afterwards. He wants to know what he earns from now on is 100% his and you can’t come back for more either. That’s also reasonable.

Ohhh hang on.

This seems overtly generous. So the OP is thinking WTF?

OP - has he filled out a Form E? You need to see that, especially if you think he might be hiding assets. (My ex forgot about £300k, funnily enough…)

DO NOT GET THE DECREE ABSOLUTE YET.

Nothing here suggests he’s hidden assets, especially if he can’t afford to buy a house and is renting. Op is in a very precarious position. Once they start sharing form e ( if they go down that route) and it’s out in front of a judge showing op has 100% of assets they’ll want to be certain op ex hasn’t had independent legal advice and may reject it.

op, how much have you had by way of equity and anything else and how much is your pension which remains untouched.whats the income disparity ?

Who left is irrelevant. There is no fault under the law for who chose to leave.

it’s unusual in a divorce for one person to end up with everything and the other nothing. It would be seen as totally unfair that you ended up with everything.

you need a financial order as frankly, you got really lucky with his agreement and he could come back at any stage and claim he was unfairly treated. A court would likely look at the current arrangement and agree so if you want to keep everything you must get the financial order.

It also prevents either of you going after something years down the line

You don’t have to worry about what ?

Eveyrone seems to have an opinion on what we've agreed but I wasn't asking about that. He earns 3 x what I do and he agreed to give me the house because he earns more. Otherwise he'd have to give me spousal maintenance too so I had the house instead which I've been told by other people is fair.

Thanks for the advice, I've seen thngs about a consent order and a financial order, are they the same thing?

Well he most likely would not have to give spousal either ! I dint know where you’re actually getting your advice from on fairness because it’s not based on any legal realities !

be prepared for a judge to contest it

I spoke to a solicitor who said that he'd have to give me more than half because he earns more than I do and I work part time because of our daughters.

I recommend you have a read of the gov.uk site on divorce from start to finish, to help you understand the process in full so you arent in the dark until a solicitor tells you whats next.
The bit about consent/financial orders is here: gov.uk

And you can Google about the difference between financial and consent orders. Good guide here: familylawmediation

But if we have both agreed then the judge will have to agree it or else what can happen?

I didn't think spousal maintenance was standard anymore

Even if you have agreed judge may determine differently if they think coercion may be at play

Thanks for the advice, I've seen thngs about a consent order and a financial order, are they the same thing?

yes, in that a consent order (in this context) is a type of financial order. The financial order is the order which legally finalises the split of marital assets. Where it’s agreed between the parties to the marriage, as here, it’s a consent order. Where parties don’t agree and a judge decides, you get financial orders which are not by consent.

The shifter answer is that in your case, yes they are the same thing.

There’s some info here for you on gov.uk
https://www.gov.uk/money-property-when-relationship-ends/apply-for-consent-order

I think you will both need to consider that while he is earning 3x more than you at the moment that may change due to illness or other circumstances and he may then be seeking his share of the joint assets. It may seem fair to some people while the situation is as it is now but it is not legally binding and things can change over time.

I know you didn’t ask for advice on the actual split you have come up with however people have mentioned it as legally it may not get approved by court for the several reasons already mentioned in this thread, and you will both need independent legal advice to decide on a way forwards that a court is likely to approve.

There would be no maintenance due if you have the children equally (unless he is an extremely high earner).

The other people who have said your informal agreement is fair may not be legally qualified and therefore not aware of the consent order process and how assets are usually split.

Second link wont work, but if you google 'familylawmediation consent order vs financial order' there's a good site.
And yes, likely he will have to give you more than half, but all this needs to be worked out formally to determine what exactly that entails.

The judge won’t have to agree! But if they think it is an unfair split of assets then it won’t get approved, it’s as simple as that and you would then have to renegotiate and return with a new proposal more likely to be approved by the judge.

A judge can order a different division !

in divorce your settlement would also be based on your full time earning capacity not pt and the expectation you work ft ( especially if children are older)

unless he earns a lot - eg 200k then spousal very unlikely

anyway, you need a clean break consent order and a judge has to approve it. In order to do so they will expect both parties to have had independent legal advice ( has your ex?) and for it to be fair …. If not they can, and do refuse it until it’s amended

I don't know if he's had legal advice but probably. I don't see how a judge could say it's unfair what we've agreed as he has a much better wage then me and he can earn more then me in future and it's not like he can make me sell the house now and make us homeless!

Of course this could be seen as unfair as currently you have what seems like a very large share of assets.

If the judge decides that he needs a larger asset share and the only way that you can provide that is for you to release money from your house then of course that would need to be sold or remortgaged. It was incredibly unwise to buy a house with none of this being sorted out.

He could make you sell the house, it's currently a marital asset. You need legal advice.

There's literally another thread active where someone's DP did not do this and now the stbex wife is seeking further financial settlement years later.
If you are both agreed this will be v straightforward

I have a friend who divorced 10 years ago without the financial settlement. The ex is now demanding the house be sold as he is entitled to half despite her paying the mortgage for the last 10 years. I really don’t understand why anyone would agree to a divorce with the financial settlement.