Divorce-is this normal or reasonable?

[digger123]

The decree nisi came through at the beginning of the year but STBXH is procrastinating over the finance and it's driving me potty!!

We both have solicitors, have sold our house (in January) and are in separated rented accommodation. His solicitor had the funds frozen even though they would have paid for a house each for us. We are at the stage where we have been through financial disclosure (his incomplete) and have made one proposal and one counter proposal.

He has a decent job and pension but no savings. All my assets are inherited and I live off the income (approx a third of his). Because it is so low (I get an NHS certificate for free dental etc) and I have the elderly dog we are in accommodation costing half of his. Basically he wants to keep his pension AND get 90% of the proceeds from our house.

We have 2 DDs, one is 17 and doing A levels, the other 21 and in final year away at uni (I've worked out she spends approx 5 months at home)

So....

1. He has now asked for 50K from the house proceeds. My solicitor has said to let him have it as the court might take a dim view otherwise as he would be due to it anyway. So it has been agreed that I get an equal amount - neither here nor there for me as I can't buy a house with it. His wage should be enough to cover any expenses he has, so, other than solicitor (potential court?) fees I don't know why he would need it. Should I have said no?

1. His solicitor has said he should not count any pension payments before marriage or since separation as matrimonial. We asked him to find out how much that amounted to. He took 5 months to reply, and then only to give us authorisation to find out ourselves. I am now paying my solicitor to do so. Is this normal and could I claim back these costs?

This is despite the fact that my proposal is based on the fact that I keep what's mine and vice versa - i.e. so I wouldn't touch his pension anyway.

1. I am due an inheritance from my Mum when her house is sold which could be anytime in the next 2-3 years. Is this relevant - i.e. if we go to court and it is valued at much higher than probate?

1. DD2 (17) is now on medication for depression/stress. Is this relevant?

Is any of this relevant either now or if it went to court?

If anyone with any knowledge of such matters could shed a light on any of this I'd really appreciate it...

Just re-read this and the bit about about DD2 sounds rather flippant...I don't mean to be - it's actually one of the most important bits of the thread and the main reason I want to move us all on asap.

It is hard to know what is likely.
Say the sum frozen is £100,000 from sale of the house and he earns £20k a year and you have interest on your savings of £5k ( so savings of about £300,000?). Let us say your inheritance is £100,000.

What tends to happen is all those assets are added up including what you will get from your mother's estate - so on the figures above as a couple you have £500,000. Then we half it - £250k each and see if that is enough to house the family - answer is yes. So a clean break and an equal split. However your income is lower so may be your ex should in addition be paying spousal maintenance. Pension can be divided under a pension order now and you get that at pension age.

In marriage people never keep what is theirs. Most of the money was mine but my ex got more than half as he earns less. It is irrelevant whose names it is in usually. Fact daughter is depressed is not relevant although I am very sorry that she is.

So you need to compare what I say above about adding both side's assets and the inheritance together and dividing by 2 against what he has offered. If he has offered about that or he gets less I would jump at it.

Thanks Greengrow. I understand what you are saying and I know that in the normal course of events everything is added up and split 50/50 so that each sides's reasonable needs can be met

However my thoughts are that...

If we were to split the proceeds from the house 50/50 (regardless of the fact I paid for most of it from non matrimonial assets) we would both be able to rehouse.

He has an income of approx 36K net a year so should be able to survive.
He will also have his pension when he retires

As this should be enough to meets his needs, there should be no recourse to claiming any of my money as it was all inherited or gifted before and after marriage.

As it happens he is claiming way more than 50% of the total assets, while saying his pension before and after marriage should not be included

It's not so much the split that I am querying - rather the things like why should I have to find out about his pension/release funds that initially he had tied up/ how can i move things on in a timely fashion rather than wait months for each reply etc

Another question...I've just been on the Gov legal aid website and it tells me I might qualify for legal aid for help with mediation (when I put the postcode in my sol's name comes up!)
Do I qualify if I have substantial savings but low income (15K pa)?
And can I change from paying full sack to my sol to legal aid?

Whoops... no it doesn't look like I do qualify

I'm not a solicitor and your solicitor has all the information so he/she is in the best position to guide you.

1)There was no real reason to refuse an advance of some of the proceeds of the sale. As your solicitor said if you hadn't agreed it could have been perceived as unreasonable by the courts and left you on the back foot.

2)Retrospectively valuing pensions from before marriage is problematic and it can be difficult apportioning growth during the marriage. Had your husband paid contributions into his pension for many years before you married?

3)When potential inheritances are certain, say because there is a family trust, they may be taken into account. Otherwise they are uncertain and the benefactor may change their mind and leave their estate to the dog or cat home or spend it, perhaps on nursing care in their old age.

4)The 17 year old being depressed and on medication isn't relevant per se unless she is incapacitated.

The priority with divorce settlements is the welfare of children under 18, but over 18s in education or training aren't irrelevant. If there are enough resources it is reasonable for a parent to provide a young student with a base when they are at uni and for a gap year even if the student is away from home during term time.

Thanks for that STITD. following your points:

1. Understood

2. About a third of his pension payments were made pre & post marriage. I agree about the difficult apportioning growth. I would prefer to leave his pension to him rather than split it. However as he is the one saying pre & post payments shouldn't be counted as matrimonial this now has to b explored whether i like it or not. As I also stated, all the assets I own now were also from pre marriage except.....

3. This is an actual inheritance as my Mum has actually passed away. what is uncertain is the value of the house. It has a probate value as of 2011 but this could of course change by the time it is sold

Thanks for the bit about uni. With one DD there at the moment her loan/grant certainly does not cover all her expenses and I am funding the extra needed, as I will when the other one goes to uni, as well of course as providing a base. Unfortunately my STBXH, other than paying the maintenance that he has to by law for DD2, has no interest in contributing anything else in any form.

This is why it is so important to get this right and not be browbeaten (I'm also paying private school fees which my income struggles to cover along with house rental etc!!!)

it is quite rare in divorce to strip out what was acquired before the marriage.
Also you have inherited already - it is not just a chance in 10 years you might. the fact the executor has not yet handed out the money does not matter - that is cash in the marital pot. In England assets are divided at divorce not date of parting. In Scotland they are divided when you part. Am assuming you are in England.

My ex got well over half our joint assets even though many of them were in my name. Many many spouses do - plenty of mumsnet housewives will get sometimes 70% of the assets if they don't work even if the husband's money is from his mother .

We used to have a reasonable needs system - so someone might have £400m and the other person was bought a small house and given some maintenance and her needs were met and that was that. Then we changed to 50./50 even if the housewife/husband had no hand in earning the £400m. I think that's very unfair but that seems to be the law now. By the way on school fees our court consent order on divorce says I pay all 5 sets and university costs even though their father got more than half the assets, most of which assets I generated. Divorce law is very unfair on the person with higher assets.

So I still stand by add up the inheritance value, your savings and equity in the house. divided by two and if he is prepared to settle for that that's not an unreasonable deal although I accept you earn less. Could you not get a higher paid job though?

The thing about the pension is not that you will get it, but it is an asset, so should be included in the total and make up his half

Higher paid job?....hmmmm - I did a check on temp Christmas jobs last week - Christmas elf anyone??? I haven't worked for over 20 years and before that had my own business which would not be feasible to restart now. Also due to my current frame of mind it would be a little tricky as I'd probably burst into tears at any interview!!!

caroldecker - that is what my solicitor said, but as the X is making this claim, feels it should be researched (at my expense of course!)

Greengrow - all my research mentions reasonable needs as being important in dividing assets, and once those are met any inherited assets are retained.
You sound very hard done by in that the larger share is normally kept by the parent with responsibility for the children. Did you keep the house or do you have the higher earning capability or does the X have a disability? Or did he just have a better solicitor?

I accept that any merged assets become matrimonial, but assets kept separate from pre marriage should not. I have actually seen a barrister who suggested I do a timeline showing all my assets and where they came from which I have done.

It is interesting what you say on value at date of divorce rather than parting.

Any tips or experiences gratefully received....I just feel I need to be as prepared as possible!

Greengrow Sun 05-Oct-14 09:27:27 wrote;

In Scotland they are divided when you part.

The beginning of the opening sentence gives it away. The decree nisi has been granted and there is no nisi here in Scotland, just one divorce decree!

digger, in England & Wales disclosure of valuations need to be updated until around the time of the final financial order. Inheritances are a grey area and there is no substitute for independent legal advice. They are relevant and need to be disclosed.

The value of any assets held in joint or sole names forms the matrimonial pot which is shared according to a checklist of factors in s25 Matrimonial Causes Act 1973. Negotiation about what constitutes matrimonial or non matrimonial property and how the assets are to be shared can only take place once the valuations have been established.

When it is a big money case and there are enough assets to meet the needs of both parties and no exceptional contribution from one party assets are shared 50:50. One party's inheritance might justify a split more in their favour. Children's welfare is priority and the court can make orders for school fees and maintenance for over 18s in education.

In cases where the money isn't big the needs of the parties, in particular for housing, comes at the top or near the top of the checklist. Needs will trump over most other things including where assets originated from.

Thanks for that STIDW. Having exchanged finance details I think the argument will now be what is matrimonial and what is not.

My solicitor has mentioned maintenance for over 18s in education, but i have found nothing on the internet about it. The barrister also suggested that he should be contributing to the school fees, but as things are moving so slowly and DD2 is in her final school year this won't happen.

One would have thought that a person with an income of 3K a month and access to 259K to buy a house would have enough to meet his reasonable needs (we do not live anywhere near London!). I guess it depends on how "reasonable needs" change on divorce??? I have already done a spreadsheet for mine which, until I get my inheritance, leaves me, after all (very) reasonable expenses for me and DDs, 9-12K per year in debit! Hence why I am trying to be as informed as possible!

PS - will read S25 of the Matrimonial Causes Act 1973 tomorrow as there might be something in there that could help an on a quick scan look informative!

I still think you'll find it hard to ringfence the inheritance etc. I just don't think we really go by reasonable needs these days. Usually you start with a 50/50 split. Nor do I think courts accept women can never work again even if they haven't worked for 20 years. You could try for university costs - our court order says I - the higher earner - should pay university costs of the five children.

Also it's all fairly rough and ready so if you are offered a reasonable offer avoid wasting any spare money on legal fees if the offer might well be what a court would award.

Maybe nowadays reasonable needs are blown our of all realistic proportion???

Yes I understand that I should be able to work but realistically I will never earn what he does.

Regarding split, his first proposal has been very much in his favour asset-wise, plus leaving me with any child costs.

I'm not sure that sitting round a table will get me as good a deal with all factors being taken into account besides assets. Would not court take more factors into account?

That Greengrow is saying does not seem to tally up with what I am reading is supposed to happen. I guess every situation is different...

Sharing assets 50:50 is an oversimplification of the law and usually only applies when there are enough assets to meet both parties' needs and there was no exceptional contribution made by one party. Based on the figures quoted in the post above this isn't a big money case and needs (in particular for housing) will come somewhere near the top of the list. With divorce settlements equality is leaving both parties living a similar standard to start independent lives rather than mathematically sharing assets 50:50.

If your youngest daughter is continuing education it would be reasonable to provide her with a base for another 3 years or so if she goes to university.
A good starting point is researching both spouses mortgage raising capacities. Because you haven't worked for over 20 years you won't have any ability to raise a mortgage which could justify a larger share of assets in your favour. On the other hand your husband may have reached an age where it isn't possible to secure a mortgage for the usual 25 year term. It would be unusual for one spouse to be left living in rented accommodation whilst the other owned their own property after a long marriage.

When the lower income spouse has a larger share of assets it follows the higher income spouse has a larger mortgage and monthly payments which reduces their disposable income and any ability to pay maintenance for students or school fees.

I think we need to know the amounts. It sounded like there was a lot of interest on savings so there was an amount of equity in the house, much much more held as savings plus her inheritance so it could be £100k equity in the house - husband offered 90% of that only and then say £300k savings and £200k inheritance to come. So say £600k so 50/50 gets them £300k each. It is certainly possible a court might realise it is hard to get a full time job every again if you haven 't worked for 20 years and give the wife more than half.

Also negotiations are just that - both sides compromise and what you end up with could be different from what a court might award but both sides don't want to spend the amount they are arguing over in lawyers' fees meaning they get nothing ultimately.

Interesting stuff..
Re mortgage - no I wouldn't be able to get one. He would only get a reduced one being late 50s. However he said once that he would only rent anyway. Also my guess is that he is aiming for early retirement, take a reduced pension, and supplement it by anything he gets off me - and hopefully ask for a larger share as his pension will be less than his income.

Re house - we owned it outright as I paid off the mortgage with an inheritance. That would be 250K each if split 50/50 so enough to rehouse. without either of us needing a mortgage.

He is offering me 50K from the house proceeds based on the fact I will get my Mum's inheritance from selling her house (which could take years and is currently being lived in by a family member). I think he is taking so long as he hope the house will go on the market and sell for a lot more than the valuation.

However my solicitor's proposal is that if we split everything down the middle, he keeps what's his (inc his pension), I keep what's mine and get a slightly larger share form the house proceeds, I will end up with 55% of the total assets.

This is so far removed from the his proposals it's ridiculous...is this normal?
I am only on here as it will be after Christmas before he replies to my proposals and it is getting intensely frustrating.

I have just received a solicitor's bill which includes costs for releasing assets from the house we sold (his request) and contacting his pension company for details which STBX gave us permission to do (after 5 months). That, together with several letters to his solicitor regarding sorting this out and permanent prodding to reply to us is needlessly putting my bills up by hundreds a month. How can I stop this???

He is currently residing in a luxury pad as he has the income to pay for it, whereas I am in somewhere as cheap (and not pleasant) as possible due to my income. I read that this could take 3 years to sort. Should I just bite the bullet, move somewhere better and pay more out of savings? I thought i would only be here a few months...

We have very different attitudes to money...he spends what he has which is why he has no savings. I try to spend within my means, with DDs being a priority. I do wonder if I should continue to scrimp and save if he is only going to benefit from my thrift?

No I don't want to go to court, but as I am the one with ready assets I think that I will be expected to compromise more than he

As your two daughters are older their needs aren't as great as younger children. I am a little surprised that your ex wants as much as he does for various reasons. I admit that I am assuming some facts here;-

1. I assume that you raised the children; took time off work and therefore didn't contribute to pensions; couldn't/wouldn't have advanced your career.
2. You appear to be on the same footing as he is. You both rent so unless there is a massive age gap between you and him there should be of an equal footing.
3. Your disposable income may not be as great as his due to the fact that you've raised children and not advanced your career.

The courts will use the factors of s25 Matrimonial Causes Act 1973 to determine how the assets and liabilities are split. But this not mean that one size fits all. Indeed the opposite is true. I would be advising that 70:30 be a starting position with a view to agreeing sometihng like 60:40.

As many will tell you here, family law is more of an art than a science and it's up to you to convince the judge why there should be of a balance towards you.

Knowledge is power so I would investgate s25 MCA 1973. I would also add that going through divorce proceedings is incredibly stressful and the person by your side should be ON your side. This is the same if you have a barrister, solicitor, McKenzie Friend....

Hope that helps.

Hi lostdad

Your assumptions are correct. I raised the kids, gave up my own business to move to his town, looked after the house etc (no mean feat as a big house with large gardens). He is 4 years older. We only both rent as when our house sold in January I was not allowed access to half the proceeds to buy so had to move to a slightly "different" area in order to be able to rent.

I never said my ex was reasonable - a passive aggressive procrastinator is how he would realistically be described. Plus he has what I believe is called a combative solicitor. He will be happy to have this go on for years...and years...

And yes knowledge IS power which is why I am trying to learn as much as possible, and also why I agreed to consult a barrister at this, some would say, early stage. He did say, similarly to you, that 75/25 would be a really high point, and that 60/40 would be more reasonable. I am asking for less than that and for none of his pension. I think that the fact that I am the one with the savings leaves me in a very vulnerable position

Greengrow seems to be telling a different story, but I guess everyone's experience is different...

20 year marriage btw.

PS i would be made up with 60/40!!!

I agree usually the assets are split 50/50 with pensions and inheritances taken into consideration. Although I read recently that in Scotland inherited property is not counted in a marital settlement.

Well I thought that inherited assets were only taken into account in England if each parties reasonable needs couldn't be met....but I'm yet to find out in my case...

I don't know a lot about this. But when things are a bit complicated sometimes an agreement has to be reached. I knew somebody whose ex had a large pension pot and a 'share' in some investment properties. But she also had some inheritance of her own and they had to come to an agreement.

Yes I realise we have to come to an agreement. I just want it to be a fair one, reached quickly and leaves me intact to move on. As STBX does not appear to feel the same way and is still trying to control everything in trying to make it all take as long and expensive as possible I'm scrabbling about trying to avoid this happening. I just feel I'm caught up in something that is going to take years, and not through my choice.