When does separation become 'formal' and what are the advantages (if any?!)- long!

[ampere]

This concerns a friend of mine.

Her DH of 20 years effectively walked out on them 2 years ago. Combination of mental health issues, really, but what you MIGHT term 'midlife crisis'. Anyway, she managed to get her DD a better allowance (?) at uni based on her being a single parent; she tells us she is now financially separate from DH except for the joint mortgage.

He is now with another woman who is quite well off and subsidising him (by his own admission).

They are in a bit of a financial hole. She works PT (having stopped FT to look after the family and support his career many years ago...) but is scrambling for more hours to make up the fact he is in a mess and she will have to take over the bills. He effectively lost a business post 'crash' due to the crash and his increasing mental instability that drove business partners away. Incidentally, in keeping with many articulate and better educated people, he has effectively hidden his mental issues- he's certainly not known to the authorities!

Apart from the uni thing, she appears to have kept the whole sorry mess secret because she is ashamed of the 'rejection' she's suffered. She has 2 DDs, now young adults at uni, and an early teenaged DS who is desperately upset with the whole thing as you would imagine.

She is finally reaching the point where she recognises that it really is 'over' but has neither the money nor, yet, the 'strength' to take this to the next step:

But what is the next step?

My 'fear' for her (and her for herself) is that she will become homeless as her DH is barely keeping up the mortgage payments. She will almost certainly lose the family home when DS turns 18, won't she?

I feel she should be finding ways of making him declare what he's 'worth' before she takes on ALL the bills which she just won't be able to afford. I mean, there have been several 'keeping up with the lads' purchases over the past year on his part!

I am very keen to help her all I can as she is a good friend. It has taken a long time for her to reach the point of realising that she must act but she is understandably scared of direct confrontation as the lovely, well mannered, considerate man she married has become a verbally abusive potty mouth over the past couple of years- she sees him when he comes to take the DS out. Which is a separate issue!

What is a formal separation? Is it just as step along the road to divorce or does it have legal implications?

Any advice or experience you have that may help me offer her helpful suggestions would be welcome. She is scared of computers thus hasn't got the benefit of a MN to call on!

As far as I'm aware, the separation happens when whichever person walks out of the door, and then therefore stops cohabiting. Best to ask a solicitor for the legal definition, but that's the one that I was told. It's the physical separation that counts.

I don't really understand what you mean by 'what he's worth'. If he's being stroppy, the only way anyone is going to find out what he's worth, is to take him to court to seek a divorce, and get a court order to look at his finances.

I don't know of any legal basis for her becoming homeless when her child reaches 18, but she will if she just accepts his behaviour and does not seek any legal or factual advice now. A reasonable court would most likely split their posessions and material material worth down the middle.

'They' are not in a financial hole, your friend is, by not being proactive in seeking legal advice and protecting her own interests. Sorry - sounds harsh, but no-one can just sit there and worry about these things. Sometimes in life you need to find out the facts and truth. That is your responsibility as an adult.

It ALL has legal implications and she urgently needs decent legal advice. If she has no money/means to do this, then she can go to the citizens advice bureau and enquire about legal aid. She will find that once she knows the facts, life will seem a lot less scary...

pic- exactly.

I so wish she was computer literate! But I must say over teh 5 off years I have known her, she is a 'mass' of 'petty' insecurities and mini-paranoias. I mean that in the nicest way!

There has been a good 2 years of what I'm sure may be unkindly interpreted: her acting like the 'Scottish Widow'. She is neither, but I think of that fine, noble lass in the ads who withstands the viscitudes of life with dignified stoicism, red lined cape swirling.... all well and good but I am very concerned that her 'shut up and put up'- regardless of each latest disrespect or threat issued may be seen in a court sometime in the future as acceptance of an unacceptable situation. Her refusal to act will be seen as concurrence.

She so needs the facts and truth. If nothing else, to face him down as it's my feeling that with each encounter (and, recently, letter) he's upping the ante, tesing how far he can push her, exactly how many household expenses she'll take on on her junior salary (as she 'halfed' work to look after their family!).

Re the house, my fear is that if she 'does nothing' and takes on the mortgage as well (he is apparently living rent free in a flat owned by his GF), DH can reappear when the DS hits 18 and demand she sells their joint property and gives him half of the proceeds.

They are already separated. As far as the law is concerned separation starts when the couple stop living together. It can also happen with the couple still sharing a house but that isn't the issue here so I won't go into that one. There is no formal paperwork required.

I think there are two ways forward from here, both of which involve solicitors. She can go for a deed of separation. That will formalise the financial arrangements, contact, etc. and is legally enforceable. He will be required to make a full disclosure of his assets and financial situation as part of this. If he doesn't, any deal can be overturned by the courts.

The other way forward is to divorce him. She has ample grounds. Again, he will be required to make a full disclosure.

One other thing she could do is to get the CSA involved to collect maintenance for her son. They won't be able to backdate it though.

The courts will want to see a fair split of the assets. The starting point is usually a 50/50 split but she may get more than that as their son lives with her. Depending on their relative financial situations she may get some maintenance for herself from him, although if there are enough assets the courts would generally prefer to give her a bigger slice of the assets and no maintenance.

She may have to downsize when her son reaches 18 but, given the facts here, I can't imagine the courts agreeing a deal that would leave her homeless.

Having said all that, it is best if she and her ex can agree the financial deal without going to court. If they do end up in court, lawyers fees and the like would rapidly eat into their assets.

The main problem with going down the legal route and/or involving the CSA is that he may react badly and try to put pressure on her by withdrawing the financial support he is currently giving. An amicable divorce would be the best solution if it is possible.

Thanks for that advice, prh.

I will study it and make mental notes as I shall be seeing her later today. She says she might be having to 'have it out' with DH this morning as he comes around sometimes to walk the DS to school (although a different topic, not sure what THAT'S about! He's a teenager and you can see the school from her house! The DS doesn't seem to actually want his father to do that but doesn't have the- well, courage to tell his father, and personally I do think that the mum isn't defending the DS's interests as much as she might for wishing to be seen as being scrupulously 'fair' at all times: 'No one will ever be able to accuse me of stopping DH from seeing his son'..no, but I do wonder if it's in the son's best interest to be going off with a dad so angry he's hitting the kerb as he screeches off then spend the sometimes half hour visit watching his father buy gifts for his GF's sons (!) or sitting in the corner of his dad's office in silence whilst he works- or dad sitting in the car txting his GF whilst the son knocks a desultory golf ball around alone)...