FDR style eharing and trial ?? financial separation not married

[cestlavielife]

had a hearing on finacnial matters - not married, applying under TOLATA and childrens act for forced sale of two jointly owned flats (one is rented out, one exP resides in but doesnt contribute full costs for).
he appeared after one month being AWOL with letter from GP saying he was mentally unfit (depression and anxiety) but had no legal rep nor even a mckenzie friend. judege said it was v difficult as his compentency was in quesiotn.

anyways... hearing set for april FDR style - presumably meaing along these lines?
www.divorce-online.co.uk/process/applications/finances-applying.htm so all submisisons etc - full bnk statements etc needed?

plus june two days set for trial - what does trial mean in this context? how does it work? stand in witness box etc? costs tons right?

exP asked judge to order me to mediate - my barrister pointed out i ahd tried to mediate this eyar twice and it had been fruitless (was in his "up" ie agresive phase). judge said we could mediate still but dates set gave deadline - which is true.

outside court exP veered form stating 2i will sign everythign now jsut give the papers"(ie me to ahve my share plus his share in trust for the DC) to "i want ALL of my 50% share as i am going to go home to live abroad". my barrister pointed out we could agree outside court and then get consent from court (how long does this take? few days if consent order sent in?) but clealry nothing could be signed today - and he needed legal advice. his equity in the properties emans he cant get legal aid tho he ahs no income...

tehre was also a suiggstion his houseing needs ahd to be considered - espec as he has MH issues.
who is responsible for that?
legally i am not as we were not married?
(i moved out early 2008 - he has had nearly 3 years to consider options...)

he was clearly not well but dont know how much put on for judge... ugh.

sorri typos but you get what i mean...

Blimey, there are a lot of questions jumbled up there.

Can you repost with numbered questions and I'll have a go. (am a family lawyer btw but short of time this eve)

yes it was...

1. waht is FDR style hearing?

1. how does a trial work in a financial situation? i mean it isnt like a crime is it?

1. who is responsible for his housing needs post financial separation? (we were not married)

1. does his mental health/ possible mental incapacity have any bearing? who represents him if he comes as LIP but is clearly not capable of representing himself / understanding what is going on? ie kept rambling... can court appoint someone for him?

1. can i rely on the trial actually resolving the whole thing and agreeing sale, division of equity - or will it drag on and on and on after that? i jsut cant affod to carry on like this owning two flats and being liable for all costs and not being able to sell and acess the equity.... and not knowing what MH state exP will be in - in april/june he could be in "up" phase and agreessive/come across as almost sane....achieve a delay? can i really thinkof juneas the "nend game"

1. how much is a two day trial going to cost in fees?

Hi there.

1. FDR stands for Financial Dispute Resolution appointment,and is used for ancillary relief cases (money disputes) under the Matrimonial Causes Act. At an FDR, the parties will initially try to negotiate a settlement in the court building, but outside the district judge's room. Often this is partially successful, so then when the case is called on, the lawyers for both sides will state that, say, ab&c are agreed, but you're arguing about d&e. The district judge will express an opinion about how he/she thinks the case should settle.

The parties then go back out armed with that info and try again to settle. If succesful, they go back to see the distric judge, the agreement is handwritten and signed by the parties and the lawyers, and the district judge approves it. End of case. If however they still can't agree issues d&e, then the case is adjourned for a final hearing (or trial). As I say, FDR is the Matrimonial Homes Act process, and you're applying under TTLA and Schedule One of the Children Act. The principles, however, will be the same.

1. The Trial is just another word for final hearing. If it's adjourned for a district judge to sort out (which is usually the case), then it'll take place in a normal court room, ie everyone just sitting round a table. If it's before a circuit judge it'll be in a formal court room, with a witness box, judge sitting on a raised platform etc. Either way, you'll both be examined and cross examined.

1. You are not responsible for his housing needs. What is at issue is whether it would be reasonable for his interest in the properties to be deferred until your child is an adult. This will of course depend on your, your child, and your ex's needs. The welfare of your child is paramount, but that does not necessarily mean that you'll be successful if he can show that you can provide for her without the need for the properties.

1. His MH issues will be taken into consideration if he raises them specifically, re. his employment prospects. You are more likely to suceed in a schedule 1 application if you can prove that the property is needed to provide a home for your child's occcupation. The court won't normally appoint a solicitor for an unrepresented person, but I peronally haven't come across a situ where a LIP was evidently mentally ill, so the judge in your case may issue a direction that a psych assesment be carried out on your ex. This can only happen with his agreement.

1. The trial is the final hearing and the result is binding on both of you unless one of you appeals.

1. Your own solicitor will gve you an estimate of costs. Inormally expect to pay £1250-£1500 per day for counsels fees, plus VAT, plus around £500-£750 for a conference. YOu may also have to pay a further charge for time spent reading the brief. Your solicitors charges for dealing with an FDR will probably be around £1k plus VAT, for a final hearing/trial around £3k. Don't quote me on this, my charging rate is around £200 per hour, some people will charge more or ess than that.

thanks. very useful.

1. children include ds 14 who is disabled (requires 24 hour supervision/care) so he wont become an adult ever... the other two 8 and 10 and fine.

i gues that in "worst case" scenario it could be deemed that he needs his 50% now for his needs. and i just have to continue to pay everything for the DC.

i cannot see a position in which he could get any of "my" 50% given as he is not providing a home for the children? and we were not married.

or am i being naive??

could i even lose some of MY 50% to his housing needs??is that feasible?? surely i should have at least my 50% for me and the DC as i am housing them and providing for them? tho with no earning power he cannot get a mortgage or even sharebuy scheme...

tks god i didnt get married (he did ask in 2007 and i kinda said yes for security reasons - but then he got too depressed...)

yes i could continue to rent propeprty via my salary and provide housing that way - however - the joint libaility on two joint owned properties mean my outgoings exceed my incomings - so there is no option other than to sell up. there have been massive service charges for refurbishment of 20,000 + per flat this year...(no sinking fund v, long story, the 2 flats are in same block) so i will be providing details of all that and loans taken out to cover this...- I cannot provide for him by continuing to effectively subsidise mortgage and other costs on property he is living in. i cannot purchase property while being entangled in two propoerties, one of which he living in.

further i need to pay all these legal fees!

(he cannot get legal aid because of his equity - judge advised him to seek pro bono representation....)

1. his MH issues - this is what concerns me - everything could be delayed if psych assessment ordered - tho if ordered in april after that hearing perhaps could be done in time for june?

having said that - if he pursues contact with the children i may need to ask for court to order a psych evaluation anyway - so far he has tried to come round to my place for doorstep contact (i said no, it had to be organised elsewhere and supervised) and is refusing to get his medical team/social worker/ community psych nurses involved in arranging supervised contact.

he wants to arrange it directly with me and i have to refuse as i really do not know if in best interest of either him or DC given his MH state (not the depression so much as the anxiety - as this manifests in tics and scary and violent and agressive behaviour)

ugh...this just goes on and on - i mvoed out in april 2008 and solicitor then said hey this will all be wrapped up in a year, you will have a contact order agreed and then you can mediate finacial matters...

ha! this will be our third xmas with him being in depression. and needing to keep him away so we can have a nice time...

largely i think due to his up/down MH - (undiagnosed bipolar or ?????)

Hi

This is quite jumbled up, so I'll limit my comments to two points.

His capital does not serve to disentitle him to legal aid if it is the subject matter of the dispute (which, presumably, it is).

The court has 2 functions. Firstly it must decide who owns what. It cannot adjust these shares, and must make provision for your interest to be realised, either by a sale or a buy-out. Secondly it can settle exP's capital upon you to provide for your children's needs. Sometimes this capital will revert to him when your child grows up (eg a house)but sometimes, if it is for example to decorate a house or buy furniture or a car, it may not. Where your child is disabled whatever may otherwise revert to him on the child growing up,may not, but it would still remain in trust.

Your legal reps should be advising you about all of this.

thanks resolution - that's clarified a couple points. ie that the court must decide and can decide.

on the face of it is is quite simple - i need to realise my euiqty on two joint owned properties - they can be sold or exP can buy me out (buying me out he cannot do as no income or other source of finance) .

but i've just received the barrister's notes and it is even more of a confuddled situation (due to ex's MH issues and whether or not he may be competent) than i thought.

cestlavie, just to say it sounds truly awful. I'm not a lawyer, so can't advise you on the legal stuff but have a difficult ex who I wasn't married to either.

We went down the route of collaborative law, so neither mediation nor going to court. The upside was that it was much quicker and cheaper. However, with your ex's MH issues that might not be an option. From your description here and elsewhere, I think bipolar sounds like a distinct possibility.

My ex and I agreed two heads of agreement (might be using the wrong phrases here); one for our daughter and one for our property. I also have some buy to lets and he relinquished any claim on them and I relinquished any claim on his business.

The downside of us agreeing to sell our house (I own two/thirds and moved out) is that we can't sell. Partly slow market, partly my ex being unrealistic about price and generally dragging his heels.

I know you say you want to sell the two flats, but have you considered buying him out of the one he lives in (or both?)and then using them as BTLs. This can provide you with future financial security or you could sit on them until the market picks up.

These are options I'm considering, as well as proposing to my ex he buys me out and I'm just working it through with my solicitor. I too thought I would not still be living in a rental for another Christmas, but these things take so long if one partner is not willing (or able) to resolve them. BTW, my ex has already broken the terms we agreed for my daughter. As soon as I can sort the house, I'm turning it over to the CSA. The games are too stressful.

queen tks for the ideas - i am maybe not seeing something but just dont see how i can buy him out even to maintain one or both on BTL - i would need to give him his share /some of his share of equity ?? (potentially equity is up to £100,000 on each flat)

where would i get money from to buy him out?
I cannot borrow any more right now any where due to having taken out loans to pay large fees for refurbishment for flats' common parts.

somehow equity has to be released i think... flats are good location and i have private buyers interested - tho obviously might not get optimum price. at this juncture just getting out of the joint ownership game seems worth almost any price! cut losses and run... put whatever is obtained on a property i can live in as future financial security...

collaborative law - absolutely - wish i could...but with him not having a lawyer it just can't work.

on some level there is some stubbornness there - and whie he clearly isnt well, some playing of the depression card - and i believe it is probably more complex than simple depression. "i just want what's best for her and the DC" he told the judge...

clearly what is best in his view is dragging this out forever? bearing in mind he still sees a future for us "together" somehow; and "just wants my family back together" which is highly disturbing....he reitereated to me and barrister ouside that he [had]wanted me to move into the rented flat which is next door to his "to have the DC close by". clearly imagining in this way both flats would continue to be joint owned and I would continue to be liable for everything.

by playing the MH card he has triggered a complex game - in which my solicitor/barrister wants to be careful that nothing agreed outside court directly with him (as he is not represented) or even with a trained mediator is seen as taking advantage of him in his poor MH state, now that this is on record, given he is representing himself... and has not had legal advice.

though there is the qestion mark over GP "diagnosis" versus needing a proper psychiatric assessment...

if he had a solicitor it would be a whole lot easier on many levels.

not to downplay depression or MH issues - but GP who wrote letter this time was same GP who phoned me directly just before children's contact issues hearing in 2008 to say "Mr. X is severely depressed you know" - then on my questioning him why he was calling ME to tell me that - when i had seen his "depression" first hand alongside experiencing his violent outbursts...he let slip that "Mr. X asked me to". i felt at that time it was harassment and bullying via the GP...and here we are again...

september this year he was "up" and it was "I am not coming to court because i dont agree with what you are doing" and "I am not going to submit any statement or counter proposal" - hence he was issued penal notice to attend this hearing. now it's "i am here but I am too ill to contest".

what next?!

I am a collaborative Solicitor. Your case is too far advanced to be taken on collaboratively I'm afraid.

If there is any doubt as to his capacity the court will want him to be psychiatrically assessed. If he lacks capacity to conduct his case the court will appoint a Guardian ad Litem to represent his interests and instruct a solicitor for him. This can be very time consuming.

A suggestion based on queenie's idea - how about, if equity in each property is similar, you taking one and him taking the other? That way you can sell at your leisure and sever ties that much sooner.

he cannot take on the mortgage on his own as has no income. bank wont transfer mortgage to his sole name obviously, and there are mortgages on both flats. so it just isnt feasible, i cannot transfer ownership /mortgages.

though was my initial idea in the beginning - one each.

You might need to give me some figures here, if you feel comfortable with that. PM if that is better for you.

Let me see if I understand. You have two properties that you jointly own (50:50?) with joint mortgages on both? Who is paying these mortgages? It sounds like you are paying both of them, but live in neither property. Your OP says he pays part of the one he lives in and you are subsidising the shortfall - why? One is rented out (what is the rent and the mortgage payment?) and is this on a BTL mortgage? I'm assuming they are repayment mortgages.

Is he on benefits? Is he eligible to live in this country permanently? Is he paying any maintenance towards any of the children. If not, why not?

Sorry for all the questions, but I can't understand why you are liable for all the costs if the properties are jointly owned. Do you have any tenants in common agreements or similar? It sounds like you took out loans in your name only for the repair work needed; is there a reason you did it solely and did not extend the mortgage?

One, fairly drastic, option could be to not subsidise the flat he lives in (how is he paying part of the costs if he doesn't work)and let it be repossessed. You will lose money this way, hard to say how much but you could end up with enough to either buy him out of the BTL or buy a place for you and the kids.

If you are paying for 2 properties you no longer live in you should get credit for that. He should be paying for all of the mortgage interest where he is living, and he should owe you on the eventual sale (you'll have to get the court to put this in the order) anything you have paid since you moved out.

Anything either of you pays off the capital will revert to you on sale - again you'll have to ask the court to put it in the order.

Resolution, I'm interested by what you say about the mortgage repayments. My ex has lived in our house since I moved out in July 2009. We have an £82,000 mortgage and he switched it to paying the interest element only when I was in hospital in May 2009 without my consent. I've spoke to the mortgage company and as we have an offset mortgage of up to £99k they are happy with this arrangement.

In our Heads of Agreement when going through the collaborative process in September 2009, we agreed that we would pay the £100 interest 80:20 as I owe 20% of the mortgage and he owes 80%. In retrospect I don't feel I was well represented and had to fight for the house to go on the market in Febuary 2010 instead of April 2010. I wanted it on the market straight away in September 2009 as it was clear the housing market was clearly slowing down. My solicitor, despite being recommended by Women's Aid was very taken in by my ex.

So long story short, on market in Feb but no (serious) offers, let alone a sale. I have written to him asking tostart repaying the mortgage. He says I can pay off my 20% but he can't 'afford' to pay more - he earns £37k+. Is there anything I can do?

Sorry for the hijack.

I assume that you weren't married.

Your collaborative agreement will stand. Even if he repays some of the capital, he'd get credit for that.

It's unusual to find someone who's moved out still paying towards the mortgage, but as you've agreed it I don't see anywhere to go with it. Hopefully in the 4-way meeting one of the lawyers mentioned that normally the person remaining would be responsible for paying the mortgage. Check the minutes of the meeting.

No, we weren't married. I never got any minutes of the meeting. I'm concerned that you say it's unusual for me still to be paying part of the mortgage. My solicitor presented it as a normal, realistic thing to do. It didn't occur to me to question it partly because it's quite a small amount and partly because I never expected it to go on for so long.

The Heads of Agreement also states that I will pay half of any ongoing property costs such as maintenance and repairs. I have to confess that when my ex approached me a couple of months ago asking for £150 or so to repair the garden fence, I said no. He has not repaired or replaced the fence. Technically I have broken the Heads of Agreement, although he didn't stick to his side of the agreement about paying DD's maintenance first. I guess I just felt frustrated that I was trying to continue being reasonable with someone who is fundamentally unreasonable but says the right things in public settings.

As the case is closed with the solicitors, I'm assuming I have no come back when he doesn't stick to the agreement unless I take him to court or see if he would be willing to reach a collaborative agreement again. I just want to get the house sold and get him out of my life!

Your solicitor should still have the minutes of the meeting. It will be worthwhile you contacting them and getting a copy of the minutes of all of the meetings so you can see how you arrived at the agreement.

no worries about hijack - useful info there !

queeen to answer:

You have two properties that you jointly own (50:50?) with joint mortgages on both?

yes. 50/50
mortgage of 220K on each, one is rented out.

Who is paying these mortgages? It sounds like you are paying both of them, but live in neither property.

i rent a nearby property in my sole name.
(expensively)
property 1 mortgage costs interest only £457 per month - he is paying £352 (money from his father i beleive) into a joint account thereby underpaying. also coming out of that account another £100 or so in insuranes his broadband etc.

also £139 per month in ikea loan he took out for refurbshing property 2 (his remit was paint and decorate on minimal cost - he ripped everything out...)

BTL mortgage on property 2 interest only 850 per month (higher interst rate as BTL)

rent coming in 1500 per month so theoretically income of some £650 - divided by 2 - however

the income from rental barely covers the overdraft on the account (dating back to the refurbishment he took on and blew money on)

Your OP says he pays part of the one he lives in and you are subsidising the shortfall - why?

effectively subisdising - or you could say his share of income from property 2 is paying this. but as that account is heavily overdrawn any income is merely servicing the overdraft.

I'm assuming they are repayment mortgages.

interest only

Is he on benefits?

apaprently not - i thought he was but GP letter said he was too depressed to claim benefits ie unable to get himself to the correct office... v. poor on GP practice if they cannot get him right person to help him claim...

Is he eligible to live in this country permanently?

yes EU citizen andlong term resident in uk

Is he paying any maintenance towards any of the children. If not, why not?

no - has no money... has never paid anything
was asking me to provide food for DC when he picked them up.

Do you have any tenants in common agreements or similar?

jointly owned as joint tenants - if he dies i get properties and vice versa

It sounds like you took out loans in your name only for the repair work needed; is there a reason you did it solely and did not extend the mortgage?

getting remortgage was always going to be more complicated eg tying into deal / remortgage costs etc - however i went to bank with property 1 mortgage and got agreement in priciple to get a secured loan (less details asked for, cheaper than remortgage fee etc rate still quite good about 5.9% ) - but this neeeded exP agreement, obviously. i sent him email pointing out advantages and costs per month versus costs per month to pay freeholder ... - he refused to sign for it stating he would "ask family and friends" for money...(was in an "up" phase) and told bank manager where to go... thereby scuppering any chances.

i said fine - you pay the 8000 for property 1 refurbishment fund (current demand) i will pay over next six months the property 2 demands ... i will shortly get current statement which i believe will show several thousand outstanding for property 1...

in nearly three years he has promised to get a lodger but has only had one for two months - he could have been renting a room our for £80 per week tax free... that's a few thousands that could have been earned...he has 3 bedroom flat to live in alone.. (tho clearly in his depressed phase not good for a lodger...)

in "up phases" has pursued vague social enterprise business ideas (grandiose schemes) - rather than seeking basic earn-some-money-a-few-days-per-week work to provide for himself and DC... .

hey ho - i think am in for a long haul... and wills till be here renting next xmas...

Have you not thought about cancelling the Direct Debits from the joint account for all but the building insurance and mortgage?

don't worry about it. It should all come out in the wash in the end. The judge should be asked to adjust your shares so he repays you what you've paid towards the house he's in (since separation) out of his share of the proceeds (IE not prior to division - this would mean you're funding half of it). Remember that you'll have to pay income tax on the rental profit.

If his loan repayments re the property can be met out of the rental income, so can yours (or, if not, you can get extra credit on the sale of the property). The eventual order really should direct how the rental income is applied until the property is sold - ie to pay expenses referable to the purchase or upkeep of that property only.

rental income neeeds to just go into the joint account to service the overdraft - there is no "real" inome as such as the account is so heavily overdrawn.

tho yes for tax purposes there is small net income (versus interest repayments) which has to be declared

I think I'm with resolution here - stop paying any of trhe costs associated with the flats except for the mortgage and the buildings insurance. You can phone the bank and tell them what you are doing and why.

I have spoken to my bank (first direct) in a very honest and upfront way about my situation and they have been really helpful. They are used to abusive (or just plain difficult) partners and ex-partners and the methods used. first direct even have a special department for it. My advice would be to get over the embarrassment and say 'I have experienced domestic abuse and these are my issues'. I found it hard initially but then figured I'll never meet them in RL and they'll have heard worse. There are certain things they can or can't tell you or do when it's a joint account, but are very clear about saying 'if we do X and Y, I have to tell him'.

I have to be honest - however I look at it, I cannot see why you are not taking your £325 from the rented property and paying it in to your account. Is he putting psycholgical pressure on you or are you worried about the mortgage on his flat going into arrears and being repossessed? You may need to be very honest with yourself here. I can recognise in hindsight how much I was under my ex's spell even when I left and, whilst I was desperate to formalise and cut all ties, I woudl have benefited from waiting before agreeing a legal settlement.

Overall, regardless of him, you need to have a strategic plan for you and DC. Do you want to keep the flats as a future income stream or pension? Is your priority to buy a property for you and DC? Or do you just want to have nothing more to do with him? If it's the latter, focus on how you can achieve that. That is the position I am now in with my partner, I'm also getting away from the idea of buying somewhere for DD and I as I think property prices will be all over the shop for the next 5-10 years and I can't put up with his games for that long.

Benefits and maintenance - it is up to him to sort this. I mean this kindly, but why are you even party to this information from his GP. Who cares? It's his problem. As far as maintenance goes, turn him over to the CSA. I've seen plenty of your threads and know you are a robust and intelligent woman, but seriously, why are you still carrying him?

I would stop trying to negotiate with him and approaching him as a reasonable person. Don't talk to him, just do it in writing and keep it factual - don't agree any more 'deals'. He may have MH issues, but he's also a player. I am so sorry you are in this situation, but I think you need to start being ruthless and practical - what do you really want.

resolution your understated advice has now made me more concerned. I will write to the solicitors and ask for minutes of the meeting. Hindsight is a wonderful thing eh.

queen tks. and reoslution and mumblechum too - i am getting a better grip on things...

and yes i know it makes no sense...

i did explain to bank about the issues. they can't do a lot without joint signatures tho.

i cannot take the money each month because the account is in overdraft - having said that i just paid £1000 out of it to solicitor for fees - figuring that if account is paying £1 per day for overdraft (halifax account) then may as well have it at the limit.

this account has only mortgages and flat related stuff coming in/out. repossession not a good option because of affecting credit rating.

my own account - i have my salary in/pay out my rent/ childrens expenses /car loan/solicitors fees etcetc. is a bit tight to say the least.

benefits etc - i only know because he turned up with GP letter spellling out all of this to court hearing "he is so depresssed he cannot even claim benefiots" . i do agree he is also playing games...up to now he was "not mentaly ill" as it didnt suit him (contact with children) - now he claims to be so because he thinks it will get him out of court process somehow..

i did go to CSA but they said his income was "less than £5 per week" and until he does claim benefits i cant even get the nominal making-a-point £5 per week.

• Do you want to keep the flats as a future income stream or pension?

no - i figure buying a property to also live in makes more sense

• Is your priority to buy a property for you and DC?

yes - tho can take time, can continue renting here for a while

• Or do you just want to have nothing more to do with him? also yes!

Why can't the rent be paid straight into your account and then you pay his share into the overdrawn account?

because the mortgage payments go out of this account so is easier for money to go in and out of same account - and it is easier to keep track for tax purposes / court papers etc. ie this acocunt is solely for the mortgages and rent plus few additional bits.

right now is "cheaper" to keep it this way with the overdraft facility on this account - as i may need my own o/d facility separately.

account