Mediate or court financial settlement ?

[catadeli]

I have just receiveded my divorce absolute in post today and the next step for me is financial settlement. I have an injunction in place against my ex so do not have to go to mediation but can go to court. We have three children, I own the house and am now on benefits. He is working part time having just returned from being off sick. I do not wish to negotiate with him but all I have is the house and it is the only security i have for the children. I cannot rely on him for maintenance (he has just been on statutory sick pay). Do I pull myself together and face him at mediation or do I go to Court. He has contributed about £12,000 to the mortgage and household bills over a period of 12 years. I dont think he should have any charge he seems to think he should have £60,000 min. The children are all under 5.

How is he housed? Does he need a place for the children to visit? How much equity in the house? Doesn't sound like he has any money at all so I would expect him to have a share of the house equity at some point tbh. In a marriage you are deemed to have contributed equally therefore the starting point is 50/50 regardless of who earned what. At a guess, a court ordered settlement would maybe go 60/40 in your favour as you have the children living with you.

RedHelenB I don't see how you could possibly draw any kind of conclusion from the OP. You don't even know the value of the assets, let alone the income of both parties or other financial resources, and especially you con't know needs.

OP I presume you have a solicitor. Answering your question is what they are there for. They know enough about your case to be able to do so properly. If you haven't got a solicitor, you need to get one unless you want to rely on random advice.

Collaborate - there is no way I have given definite legal advice here, just a generalisation of what might be expected. Sometimes that is helpful, it was to me when I was going to divorce, to have an idea of how our assets might be divided.

But blindly saying it may go 60/40 in OP's favour is not a generalisation. It's actually quite specific, and without any reasons to back up why the split might be so.

My solicitor says its always best to try and mediate but should it become too intimadating then to stop and go to Court. I bought the house prior to marriage large(ish) deposit from sale of my old house and mortgage in my sole name. It was only on the birth of our first DC (and manage to keep a job) that he contributed to mortgage and bills. When I bought house he could not get a mortgage bad credit rating and had no money and had no wish to contribute. He has not invested any time or money in upkeep. I begrudge him anything he has been so awful to us.

Everything will be assumed to be marital assets, even if you owned it before you were married, and the financial settlement will be about making sure you both and, more importantly, your children have somewhere to live and enough money to live on. That's a bit crappy if you owned the house before you were married and if he hasn't contributed much but it's something you need to be aware of. You solicitor should be able to advise you on what is a fair settlement that will be accepted by the judge.

nocake that's not right. Pre-marital assets and inherited assets are not assets of the marriage, although the marital home is, irrespective of who provided it. However the fact someone brought the home to the marriage can be a good reason for departing from equality.

OP: Just because an asset is a marital asset doesn't mean to say it will be divided equally. There are a whole host of factors to be taken into account. It's not as simple as asking a mate in a pub what happened in their divorce, then assuming the same will happen to you.

BUT it doesn't matter how awful or good he was to you & the children - it is purely about need & if he has little money of his own as you suggest I can't see him coming away with nothing.

That's interesting, Collaborate, because all the assets I took into my marriage were considered to be marital assets and were added to the pot to be split up. Has the law changed in the last 5 years? It would be great if it has.

It's not changed in that way. Needs do however trump contributions. Yo can't really compare one person's case against another's unless you have all the relevant facts. The judgments in reported cases are often at least 15-20 Pages long.

Interesting that you got DA prior to resolving the ancillary relief. Not something I would normally recommend.
Agree with Collaborate ref division of assets. Without a lot more information impossible to say what might happen.

Taken into account are what you each brought to the marriage re assets, what you both contributed during the marriage, other property/assets, pensions, current earning, residency of the children and on and on.....

Its complicated and lots of factors are taken into account by the judge if you opt out of mediation. Your solicitor can give you an idea of what a judge may order, but there are no guarantees as it depends on the judge on the day. (they use legislation and precedent to reach a judgement, but they still have some leeway)

Mediation is a lot cheaper and if your solicitor can give you an idea of how a judge would call it and this suits you, I would stick with the mediation and see if your exH's solicitor can persuade him to agree. Usually this financial stuff is sorted out between the nisi and the decree absolute but its really stressful