When an ex is being totally unreasonable about money and selling the house

[secondchanceathappiness]

Hi

My Ps ex (they are not divorced so still tied financially) is being totally unresaonable about selling the marital home. She doesn't want to but he needs the equity to get a place of his own (currently renting). She won't talk in a reasonable way (always ends up making threats/tantrums etc). She expects him to pay half of the mortgage but won't let him near the house and he is currently sinking - both financially and mentally. What can we do? This is a nightmare that we can't see a way out of. It's like she's got everything she ever wanted and he is on the verge of losing EVERYTHING. She won't let him move on - despite it being a year since they split up (long background story - won't bore you!). She was the one who didn't want him anymore.
DO you have any practical/legal advice?
Many thanks.

are there any children? Really he needs to get himself to a solicitor and sort this out. usually the party staying in the house pays the mortgage as they are 'renting' the other half of the house from the person who had to move out.

My DH ex did this, he spent around 15k on legal fees going to and fro with the solictors as his ex wouldnt sell either. it got to court, on the second hearing they agreed a mesher order, but ex had to pay mortgage. in the end her legal fees were so ridiculously high (even more than DHs) and she'd ran up huge debts she had to put the house on the market one month later anyway. DH had suggested that 2 years earlier. then when it was on the market she stopped paying the mortgage and refused any reasonable offers, cue more legal costs for DH. however as she had agreed in court to pay mortgage he got all his payments back once the house finally sold.

there are a lot of emotions attached to houses and screwing over someone financially can be an excellent way of getting revenge. but tbh she is bringing herself down too.

Your DP needs legal advice and he needs to be firm and sort this out via court if necessary.

Thanks for the swift reply CaptainP! I appreciate it. My P has got a solicitor but sadly has no money to pay anymore fees and it's all ground to a halt. I keep trying to get him to either get a new one, or be a bit tougher but he is struggling to get through each day and I don't want to keep going on at him. I have suggested he doesn't pay mortgage, BUT she is so unreasonable she probably wouldn't pay it either and then it would go into repossession and he would lose all equity. Yes there are children, sadly. She has him over a barrel and boy does she know it!

If they have children then she is likely to be allowed to live in the marital home with the children until they are grown up, at which point the house will be sold.

Courts don't like to make children homeless or boot them out of a secure home into rented if they don't have to.

The only way to deal with this is legally and if he can't pay for that, then he's in a pickle. Has he been to the CAB? Maybe they can help him?

Thanks Vile - yes he definitely is in a pickle! Has tried to get an appt with CAB but no luck. He's working all hours to stay afloat so is usally at work when they have appts.

If she stays in the house is he legally obliged to keep paying the mortgage, or is it common practice for the spouse who stays in the marital home to pick up the mortgage (bearing in mind he is having to pay rent for his place too)? Could an agreement be drawn up whereby he is discharged responsibility for mortgage if she gets to stay in the house until kids reach 18? And would he still get a fair share of the equity once it's sold? What if she meets someone else and new DP moves in with her? Surely it wouldn't be right for my DP to be subsidising her living with a new man? So many questions!!! Thanks for all help so far.

I'm not a lawyer so I wouldn't even try to answer that. I just have personal knowledge of quite a few people who have split and the wife has been granted the right to stay in the home because of the children. The details of the arrangements vary from person to person.

The only way he is going to resolve it if they are unable to reach agreement themselves is to go to court and ask the court for what he wants. They will then act in the best interests primarily of the children but hopefully fairly to all.

Divorce settlements depend on the specific details. Any assets (including pensions) forms the matrimonial "pot" which is shared according to a checklist of factors in s25 Matrimonial Causes Act 1973. The welfare of the children of the divorcing family is the priority, in particular meeting their need for housing. In many cases there aren't enough resources to go around and the needs of the parties are near the top of the checklist.

Unless the property is too big and can be sold to release equity for both spouses to rehouse a sale may need to be deferred until the children are older or his wife remarries or cohabits if that is the only way to provide them with adequate housing. If the wife cannot take out a mortgage of her own your partner may have to stay on the mortgage. Depending on their respective incomes he may need to pay spouse maintenance so his wife can pay the mortgage. Not only that, but if she does cohabit and the new partner has a low/no income there is a possibility she could stay in the house and spouse maintenance payments could continue.

These are just possibilities. As I said above each case depends on the specific details and without knowing the value of any assets (including pensions) held in joint and sole names, the duration of the relationship (marriage + cohabitation before), respective incomes from all sources, ages, the number of children, their ages and the number of nights they spend with each parent no one can say where your partner stands. IT may not be as bad as all that.

Goodness, that's not looking good! DP literally has no money leftover by the time he has paid his rent, bills, half her mortgage etc - how could she be eligible for spousal support when she had an affair and caused him to leave??? It seems really unfair to me.

But I really DO appreciate your replies - thank you so much. I guess I will have to keep on at him to go and sort out with a solicitor. It will be worth the outlay in the long term.

Any other advice much appreciated!

"how could she be eligible for spousal support when she had an affair and caused him to leave???"

Divorce settlements are a number crunching exercise and conduct is very rarely a factor. Spouse maintenance depends on the needs of the lower income spouses and the ability to pay of the higher income spouse. If your partner is on average or below average income there is unlikely to be a big enough discrepancy to justify spouse maintenance payments.

However if he and his wife don't have many resources and she is responsible for housing the children most of the time she may "need" a larger share, or even all the equity, to house the children adequately during their dependency. As I said the welfare of the children of their family is the priority. Your partner has an obligation to them to fulfil.

One of the problems with separating couples is both spouses' illusion of the relationship can be replaced with delusions and unrealistic expectations. Very often when people are angry and unreasonable it's because they are hurt and fear the financial uncertainties. If communication can be improved there is better understanding of where each other is coming from and then it's more likely that constructive progress can be made to resolve problems.

To that end it can be helpful for separating couples to go through the figures with the help of a mediator to find a compromise and a way forward that can work for everyone. People on low incomes may be eligible for legal aid for mediation. If mediation doesn't work the alternative would be to commence court proceedings and someone on a low income might have to represent themselves if they can't possibly afford a solicitor.

Perhaps he could have the child half the time then so that she has more chance to work full time? How many days a week does he have the children now and does his ex wife have a job?

What is all this 'we' business? This is his problem and none of your business.

I would feel I failed my child if they had such crummy self-esteem the best they felt they could do was some guy still married, kids and all manner of dramatic baggage.

He could get a Novitas loan to cover litigation costs, or apply to the bank for a litigation loan.

He could hire a McKenzie friend to help him with the paperwork.

The chances of him getting the equity in the house to start again are slim but not impossible. He certainly won't get 50% of the equity if there are children involved.

He could arrange to go to mediation with her and try to hammer out an agreement.

He may know all of this (given that he's had legal advice) and that you're only being told part of the story.

So try to think of it like this: It is, after all, totally reasonable, nay morally right, for the children to have a secure roof over their heads.

From the children's perspective - they didn't ask for their parents to split up, but their rights in law come first: their needs are paramount.

He could self-litigate and check out wikivorce as a resource. Ditto buy the book 'Family Law Made Simple' and have a read of it to understand the process.

Very often, in divorce, there are insufficient resources to ensure that both parties can continue to live within the means they used to live. However, the children should not be deprived of their needs.

So it may be, in your considered opinion, that the woman you barely know is 'totally unreasonable' and that your DP is about to lose EVERYTHING, but the children's needs are reasonable, and they have lost their two parent family through no fault of their own.

And that is why everything seems so unfair to the adults in the story.

I hope that helps.

My ex got 60% of our assets and we have children who lived with me. That was because I earned 10x what he did. Plenty of women do these days. Each case differs. If the wife earns a lot more the husband even if the children do not live with him can get more than half the assets to buy out his future maintenance claims on the wife. Not all women live off male earnings!

Sorry to hear about the problems you're having. It's a common thing I see all the time.

Your partner's ex is happy with the situation and things won't change unless you take action. If you have been unable to come to an agreement court would likely be your next step.

As they are still married they are still linked financially and dissolving this link is something the court can do.

When it comes to Anciliary Relief (under the Matrimonial Causes Act) it doesn't matter who has put in or taken out at any point throughout the marriage. There are many implications here - one relevant one being that the fact he is paying half the mortgage won't be that relevant.

Furthermore, the fact that there are children means that when the `pot' is divided up whoever is the primary carer will receive the lion's share of any equity left over. At any financial order all assets and liabilities - equity, investments, money in accounts, loans, pensions, everything - will be added up and things will be divided. It's common for a parent with the children to get at least 60% of any assets.

Your partner is NOT legally obliged to keep paying the mortgage but as you say that may lead to repossession. That said, mortgage companies are extremely reluctant to do so unless there are no alternatives.

You mention her affair. It's most likely irrelevant. Any court involvement in this issue will be under the Matrimonial Causes Act and not the Children Act. Under the Children Act wishes and feelings are a factor. Under the Matrimonial Causes Act it's more a case of `cold hard cash' and behaviour of the parties involved are ignored unless they are extreme (and an affair is seldom likely to be considered so).

What ultimately happens however is down to whatever the court orders or what you can negotiate.

As your partner cannot afford a solicitor he should consider a McKenzie Friend. They're not solicitors or barristers and don't do exactly the same thing. They don't have automatic rights of audience, are not able to litigate or act as your agent. But good ones are as good as any legal professional and often much cheaper.

If you DO use a solicitor make sure they have experience of contract law, etc. Although this topic is under the ambit of Family Law we're talking about property and contract issues and I've come across more than a few hearings where orders have been made that aren't enforceable under property and contract law. Family Law solicitors are experts in Family Law!

You should also consider joining Families Need Fathers (www.fnf.org.uk/). It runs a helpline, forum, support meetings across the country (many with solicitors offering free advice) and it's not just for fathers - mothers, fathers, stepparents, aunts, uncles - anyone who is involved with family separation.

Hi lostdad, greengrow and wellwhoknew - thank you so much for your advice and useful comments. I had never heard of McKenzie friends before - but I have now! Thanks. I wil put him on to Families need Fathers too.

It seems dads lose out big time when it comes to splitting up the finances, something I had never appreciated until I got to know my P and have read up about how finances are divided. I know my P would be more than happy to have his children more than a couple of times a week but she just makes things so difficult and hence he would not be looked upon as doing half the care.

thanks again to everyone who has replied with helpful comments.

Dads don't lose out big time on finances. Higher earners in the relationship lose out big time. This is often the woman these days.

The best advice to men is ensure women keep working full time and that the men spend as much time in the marriage doing childcare and house work as the women and don't marry a lower earner wife and then things are find afterwords. Many don't take my advice and they suffer for it on divorce.

*"the fact that there are children means that when the `pot' is divided up whoever is the primary carer will receive the lion's share of any equity left over. At any financial order all assets and liabilities - equity, investments, money in accounts, loans, pensions, everything - will be added up and things will be divided. It's common for a parent with the children to get at least 60% of any assets.

Your partner is NOT legally obliged to keep paying the mortgage but as you say that may lead to repossession."*

I don't entirely agree with lostdad on this occasion. The sharing of assets depends on the particular circumstances. That's why I was careful to use the words "if" and "may" in my posts above. In our case for example at the time of divorce I was the higher earner, the assets were shared 67:33 in favour of my ex-husband and I paid spouse maintenance even though I was the "primary carer." Greengrow I believe was in a similar position.

As far as the mortgage is concerned a mortgage is a contract with the lender. IF a mortgage is held in joint names both parties have joint liability, giving each of them responsibility for the full amount. When one party doesn't have the ability to pay the legal obligation falls to the other party to pay the full amount.

Money does indeed follow the children. In reality this means the primary carer will receive a larger proportion from the marital "pot".

However the mortgage is contract between both of you. This means that you both have joint and several liability. The mortgage company won't spend money chasing the other party that isn't paying. They will chase the person that is easiest. Why? Cost. As simple as that. If they have to spend time (and therefore money) on chasing another party the costs will be added to your account which means your debt only increases. The mortgage company are under obligation to ensure that they keep costs down as much as possible.

Because you both have joint and several liability for the mortgage it means that if the mortgage defaults it will affect both of your credit ratings. To be clear a mortgage company won't want to repossess a property. It is expensive and you will be lumped with a large loan if the house has negative equity. For clarity the mortgage company only have to achieve the best available price and not the best possible price. There is a difference. The house will go to auction and therefore the best possible price simply won't be achieved.

I work with my partner on these issues. She has spent over 10 years in recoveries repossessing properties and working with all manner of debt issues.