Living In House During Divorce

[flowertot]

Sorry, this is similar to last........
If myself and children are living in the house when the divorce goes through, we are unlikely to be made to sell it I gather. I would love to buy my husband out but he won't agree. What therefore happens? Are we allowed to live there until the children get older and then sell and split the equity? If so it will have appreciated in value quite significantly so he will then get a higher amount when I have been paying the mortgage for years. Seems unfair. Also if I make improvements to the house then he is benefitting. They can't make him sell to me I suppose? And as he is being really foul, it is wise to live in a house he partly owns?

Please anyone?
I am quite scared about this. I am not living in the house at the moment but renting. DH can no longer pay the mortgage though so I have to move back or sell it quick before it gets repossessed and we lose loads money. He is not a nice piece of work and does it mean he can come and go if I live there as it is half his? I want to know how we can sprt the equity in it too, it is the only money we have between us so the sooner we can get it sorted the sooner we can be free of him. Kids excepting of course

Flowertot, do you have a solicitor? How far are things along?

Exactly what might happen depends on a huge range of factors but the most important things it'd be helpful to know would be how many children there are, how old, how long the marriage (and any cohabitation beforehand) was, whether you are both earning (and if so who earns more) and whether he is willing and able to pay maintenance (getting a court order is one things, getting someone to pay can be another....)

Yes I have a solicitor but may have to self represent as costs are going to be so high with him contesting.
We have 2 children, 4 and 6 months. Married for 5 years. Husband was setting up business and therefore not earning (borrowed, loans, credit etc all in his name). I am SAHM so no income either. He will never be able to pay maintenace I know so I want as much as poss from house and do not want to sell it or will never be able to buy anything. We are not living there at present, with family, so is he, but if I move back with the children, does he have rights to walk in and out as he pleases as joint owners? I am not allowed to change locks am I?

Flowertot, thanks for the reply. Unless there are any court orders to the contrart in place then you both have the right to live in the house whilst you're still married and so no, legally you can't change the locks unless he's agreed or you make other arrangements for his reasonable access. Also, tecnhically he does have the right to walk in and out of the house as he pleases at the moment. If you're worried about this you can apply for a court order excluding him from the house but that will probably only succeed if there is fear of domestic violence (you have to show that there's likely to be "significant harm" if the court doesn't make the order). If there is a fear of violence then talk to your lawyer about getting an occupation order.

If the divorce goes through your likely to get the house given the age of the children and the fact that you're their primary carer (I guess he's not objecting to you having the kids but if you've been their primary carer the court would probably favour you anyway). This is because the welfare of the children is the first consideration in making the financial arrangements. Exactly how this is done would depend on what you could agree/the exact facts of the case. One option wold be to have a "mesher order" where you get to live in the house (and he has no right to enter) until the children are 18/left education and then the house is sold and the equity split (not necessarily 50:50). That wouldn't be a problem for you day to day as he wouldn't be able to come in etc. To be honest wiht such young children a "mesher order" is proabably inappropriate anyway (and why would he want to wait 18 yrs for the cash?!) It's probably more appropriate for it to be transferred to your name with you paying the mortgage (probably with him paying mainteance for the next few years if he can/will). There's no reason why this can't happen even if you're not currently in the house though of course it'd be easier for him to argue that you don't need the house if you're living elsewhere.

Hope that's helpful. Please only take this as a general pointer - all of these family cases are so fact dependent that you can only really get proper advice from someone who has sat down with you and gone through all the facts.

Thanks Catz. We are just about to move back anyway. As yo say the mesher order is not such a great idea as they are so young, so if the house was tranferred to me, does that mean I would have to pay his his share of the equity as it is now?

Its just that my brother is planning on offering to buy him out. If I would be awarded the house anyway, then be a shame to buy him out if not necessary. Thing is he has no money (severe debts) so no way will he be able to pay any maintenance, but equally could argue that he will need some of the house equity to set himself up with somewhere to live

Flowertot, I'm really sorry but it's pretty much impossible to say without having all the facts and figures. There aren't any standard rules here, everything is tailored to the particular facts. I can understand you not wanting to drive up the legal costs but could your lawyer give you a short piece of advice on the facts that you've told him/her which you could then use as a guide for mediation or negotiation?

Roughly speaking the most important issue is housing the children and the parent staying with them and the next most important consideration is the housing needs for the parent without the children. If you live in a reasonable house for you and two children (i.e. not a huge place) and you need all the equity to stay in that house (i.e. you can't fund a bigger mortgage - ignore your brother's money here) then it could all be transferred to you without the need to buy him out. If, on the other hand, there's a reasonable way of using the money that you both have to produce a sustainable way of housing the children but still giving him something for the deposit then that would be more likely. If so then a court would probably order the house handed to you but some payment to him.

If you're a SAHM and maintenance is not likely then I imagine it's difficult for you to fund a mortgage. In that case there is a probably a good argument for the house to be transferred to you without you buying him out. That might sound unfair but you are taking on the costs of bringing up the children (subject to any CSA payment from him) and giving up the chance to work for the next few years. However, I really feel uncomfortable saying what would or wouldn't happen as - as I've said - it depends on the facts so do get advice from someone who knows them all. Hope it's useful anyway.

That was really useful Catz thanks. Just exactly what I wanted to know. I understand every case is different, but just wanted a general idea.

Many thanks