help with divorce - legal fees etc???

[jeangenie]

I'm asking on behlf of my brother inlaw - he is a really great guy, married for 7 years and separated for 2 now. They have a 5 yo son. They own a house together and he's been paying mortgage on the house as well as maintenance. His soon to be exwife wants him to leave the house to their son until he is 18, but he wants to get whatever money he can out so he can buy a flat and have a secure base for the son when he has him. They share access and I must say he is absolutely the best dad to his son, looks after him at least half the time and does all the running.

We were just talking and he is worried that if they end up in court he won't end up with anything much out of the house as he would have to pay such high legal fees - he mentioned £30K fees out of a possible £50k that he might get out of the sale. His stbxw gets free legal aid so is happy to go all the way to the court.s He thinks he may actually be entitled to free legal aid but isn't sure...he earns £24k a year...

he is really lost and confused (his stbxw is being very acrimonious towards him and very unpleasant indeed, including in front of their son - she won't give him information when he needs it etc etc) - I wondered if any of you might have any advice?

is he entitled to free legal aid? I can't think of any other specific questions to ask but any advice would be great.

He is a lovely man, and feeling very low at the moment so I really want to help if possible

Not sure what the cut off point is for legal aid re wages but a quick call to a solicitor that does legal aid work should confirm if he can claim it.

I cant imagine why it would cost 30K in legal costs to get £50k equity from the house so he needs to look at moving solicitors.

If she intends to fight to keep the house until their child is 18 can she afford the mortgage? If she can, the courts may go in her favour. If she cant, selling is an option so that they can both get their own places. Just because she can ask to keep the house doesnt mean he will be expected to pay the mortgage - on a salary of 24k a judge will see it is no reasonable to support two households. Judges arent in favour of leaving the other person with no means to get their own dwelling (rented or otherwise).

CSA wise, he'll be expected to pay 15% of his net wages in child support - there may be some reductions if he has his son regularly overnight.

It sounds like he is doing his best by his child and that would come across in court.

thanks HMO1 - I don't understand why it would cost so much either, but seemingly both the mediator and his solicitor have said so
I think it is because xWife plans to fight it and refuses to pay any part towards the legal fees - does that make sense?

he already pays the 15% and more when he can, and has his son whenever he can. Xwife won't disclose her working schedule to him but expects him to take son whenever she is working, which makes things very difficult for him - they are both in irregular shift working patterns. He regularly drives 60mile round trip to pick son up as she won't drop him off, and she refuses to even pack son's bag...

he is close to giving up (not in his son, that's never going to happen) as she seems to have the upper hand in it all, so me and DH just want to know what to advise him. I'll try to get him to call and find out about the free legal aid threshold at least

thanks

Im pretty sure that even if his ex is getting Legal Aid that she will probably have to pay back some or all of her costs out of her settlement, so its really only a loan.
24k is a decent wage, & I doubt your brother would be entitled to Legal Aid. Worth checking with the calculator though.
www.communitylegaladvice.org.uk/en/legalaid/calculator.jsp

If the fees are over £3k I think then both his wife and him will have to pay any legal aid they get back - out of anything they recover. Often the home has another mortgage on it to the legal aid people. Legal fees could well be over £50k if they are both silly about it. Can't he sit down and compromise with her? In a lot of divorces the only way to house a child is if the house is not sold until the child is 18 and then the other person gets their capital. However if the mother could remortgage and pay money to her husband that is a possible or if the house is too big for them it could be sold they move into flats.

They could try mediation to agree over financial matters in an effort to keep legal fees to a minimum.

Perhaps he could point out to his wife that legal aid is not free. She will have to pay back the amount loaned to her - and if it is in the form of a charge on any property she gains or buys as a result of the divorce, there will be interest to pay on it too. So she should have an equal incentive to agree matters prior to involving the courts (which is when the legal fees really start to accumulate).

that's the probelem I think - she is prepared for it to get silly, she says she will fight tooth and nail to keep the house and go all the way to court - I think she is trying to frighten him. She is fairly manipulative. The house is a four bedroom one for just her and their son, which seems a bit excessive as BiL is forced to lodge with someone...

they are going to mediation in a couple of weeks and he is so sick of her belligerence we are concerned he will throw in the towel and let her have whatever she wants

oh, didn't see your message freckle - I don't think he realised it is a loan, that might make a difference...

I think he may need to look into a less expensive solicitor too

Yes, if the fees are over £3k you have to pay it back from what you recover. But the first he needs to look at is whether she would win or him. If the house is bigger than needed for a mother and son and they could sell and buy something smaller then that is what would be ordered. The starting point is 50% each. If they both work full time and will have the child 50% of teh time and earn about the same then 50% each is probably about right if that leave enough to house the child in a 2 bed place.