Should I ask for a NEW financial settlement?

Sarahsaver

Can I ask for a new one?

Had a clean break order thru the courts, with ex husband. He was ordered to sign the house over to me in 2005, which he has still failed to do. Because of this new hubby and I cannot get a new mortgage, as house is still in my name along with ex. We are paying over the odds for the mortgage because of this and the Consent order says WHEN (more like if) ex signs then he is entitled to 40% of the equity in the property, WHEN the youngest child leaves full time education. Youngest is 5 now. He has asked the court for the money NOW which he cant have because there is no charge on the property until he signs, if you catch my drift He basically has us going round in circles.

If he does get his !!! into gear and sign the equity is somewhere around 50k, which we can neither afford nor does he deserve.

Should I go for a NEW financial settlement? I have always thought this judgement to be grossly unfair, especially as it is I who has paid the mortgage for the most part, paid the deposit, brought the kids up, kept the roof over their heads. He is lurking in the USA somewhere to avoid child maintenance and debt collectors. He left in 2002 and new hubby has been in the house since jan of this year.

Prudent

Are you allowed to sell property and keep the 40% for now? One of my friends had a similar court order. She couldn't sell as the share of the equity was linked to the house. If she sold, she had to pay back early.

Prudent

OOps just re-read your post and realised you don't want to sell. Sorry!

Sarahsaver

I DEFINITELY don't want to sell! I dont think he can force sale either unless the youngest is aged 21 or out of full time education.
My youngest son is very clever and will therefore do a medical degree followed by architecture LOL;)

spamalot

Had a clean break order thru the courts, with ex husband. He was ordered to sign the house over to me in 2005, which he has still failed to do. Because of this new hubby and I cannot get a new mortgage, as house is still in my name along with ex. We are paying over the odds for the mortgage because of this and the Consent order says WHEN (more like if) ex signs then he is entitled to 40% of the equity in the property, WHEN the youngest child leaves full time education. Youngest is 5 now. He has asked the court for the money NOW which he cant have because there is no charge on the property until he signs, if you catch my drift He basically has us going round in circles.

Sounds to me like you have a mesher order in place. I.e that the house will be sold at a trigger point, in this case when the youngest child finishes full time education, which I believe is a standard agreement. If this is the case then I am surprised the courts required that he sign over the house to you in 2005 because generally things are left as they are until the trigger point. Forgive me if I've read this wrong, but this is what it sounds like to me.

If on the other hand the court stipulated that your ex was to use his 'best endeavours' to get his name off the mortgage then this is a different matter.Might need clarification on this point before giving any more suggestions as depending on whether it is a mesher order or you were left with 'best endeavours' will very much dictate what you can do next.

You might want to clarify this point with a solicitor, but I believe that full time education in relation to consent orders is defined as up to the end of A levels not degree level. My OH is in the same situtation with regard to a Consent Order and from what his barrister said tertiary education is not taken into account. Child Maintanence runs along the same lines as well (you can get the details of this on the CSAwebsite), unless a voluntary consent order was entered into that specifically stipulates the provision of support through university and according to OH's barrister this can be overturned when they hit 18 if the circumstances have changed (I know you are not battling for CM but just as futher info).

Whatever the situation I would strongly suggest you get some good sound legal advice before going further.

Bossyboots

spamalot wrote:

Sounds to me like you have a mesher order in place. I.e that the house will be sold at a trigger point, in this case when the youngest child finishes full time education, which I believe is a standard agreement. If this is the case then I am surprised the courts required that he sign over the house to you in 2005 because generally things are left as they are until the trigger point. Forgive me if I've read this wrong, but this is what it sounds like to me.

If on the other hand the court stipulated that your ex was to use his 'best endeavours' to get his name off the mortgage then this is a different matter.
Might need clarification on this point before giving any more suggestions as depending on whether it is a mesher order or you were left with 'best endeavours' will very much dictate what you can do next.

You might want to clarify this point with a solicitor, but I believe that full time education is defined as up to the end of A levels not degree level. My OH is in the same situtation with regard to a Consent Order and I believe tertiary education is not taken into account. THis is when Child Maintanence runs to as well (you can get the details of this on the CSA), unless a voluntary consent order was entered into that stipulates the provision of support through university and according to OH barrister this can be overturned.

Whatever the situation I would strongly suggest you get some good sound legal advice before going further.

In my experience it is usual for the property to be signed over as part of the consent order with the non resident party having a charge over the property. Indeed, the current flaw in this procedure is the lack of willingness of the part of mortgage companies to remove them from the mortgage, even though they no longer have their name on the deeds.

The argument as to what constitutes the trigger point of ceases full time education is a common one. It is usually intended to mean after A levels and if it is required to be into university or college level then it is vital that this is stipulated in the order.

As for whether you can get a new Order, if it has been sealed by the court then you cannot unless there is provision in the order for you to do so. You can however go back to court to get the order enforced and the Judge can sign the necessary documents on behalf of your ex husband if he refuses to cooperate. If you were not happy with the settlement at the time, you should not have agreed to it. The court has endorsed the order so presumably did consider it fair.

spamalot

As for whether you can get a new Order, if it has been sealed by the court then you cannot unless there is provision in the order for you to do so. You can however go back to court to get the order enforced and the Judge can sign the necessary documents on behalf of your ex husband if he refuses to cooperate. If you were not happy with the settlement at the time, you should not have agreed to it. The court has endorsed the order so presumably did consider it fair

I stand corrected on the mesher order front!

I agree with Bossyboots on what was said above. This was my initial thought and is really the whole point of a clean break, i.e. neither party can come back and ask for more or a different deal. BB is absolutely right in saying that if Sarahsaver wasn't happy then she shouldn't have agreed to it, however some solicitors can steamroller their clients into agreeing (personal experience) but the point is to always read the small print!

As suggested perhaps the best you can do is to get the CO enforced rather than changed. But still strongly suggest you seek legal advice as soon as you can if you wish to pursue this.

Sarahsaver

It's not a mesher order. It is as a previous post said a case that he has to sign the title deeds over to me but there will then be a charge on the property triggered by remarriage,death etc. PROVIDING that the youngest child has left full time education or reached the age of 21.
BTW he stated his address as a uk address but had his documents signed and sworn in the USA so he doesnt even know where he lives LOL.

Bossyboots

The other thing that has just occurred to me is that cohabitation of longer than six months is normally a trigger point. Is this missing from the consent order?

Sarahsaver

No but it is only actionable when the youngest child leaves full time education or reaches 21 but the ex can ask the leave of the court to have it exercised sooner. B*stard.
I spose only a really unreasonable judge would order the sale of the family home whilst there are 3 primary school age kids living in it...?

Bossyboots

Sarahsaver wrote:

No but it is only actionable when the youngest child leaves full time education or reaches 21 but the ex can ask the leave of the court to have it exercised sooner. B*stard.
I spose only a really unreasonable judge would order the sale of the family home whilst there are 3 primary school age kids living in it...?

Unfortunately, not necessarily. You are lucky if it is a conditional trigger point. Usually it would stand on its own merit and instantly cause the non resident party to be able to call in their share. To have it done as you describe is rare.

Your ex will have a strong argument that it is not reasonable for you to be living with another partner in a house in which he has a share, even with your children living there. The ethos of financial settlements is clean break and this is certainly a point at which that break should be actioned.

You can never tell what Judge's will do though and the fact he has made things so difficult up to now will not go in his favour although you could have asked the court to sign the paperwork some time ago.

Even if he is not successful in getting his equity released now, you must start planning for the day when you will have to pay it and of course it is going to be more in the future than it is now unless something very bad happens to house prices. You also have an obligation to keep the house in good repair so that the value is not lessened by means within your control. A court can rule that the value used is the market value achievable if the house had been cared for (I know someone this has just happened to), leaving the resident ex spouse in a parless financial position.