Should I ask for a NEW financial settlement?

nicola1982_2

Why does he only get 40% equity? Sorry my partner divorced his ex for adultery and they sold prior to divorce and although she is RP of his kid she got no extra money. The split was 50/50 however he ended up receiving more than her due to payment records.

Your situation sounds odd to me, I thought to have a clean financial break all joint borrowings had to be split/repaid, ie houses sold, loans repaid, bank accounts closed.

Is there no chance you could sell the house to your partner? That way at least you'd have no joint borrowing with your ex.

Bossyboots

nicola1982 wrote:

Why does he only get 40% equity? Sorry my partner divorced his ex for adultery and they sold prior to divorce and although she is RP of his kid she got no extra money. The split was 50/50 however he ended up receiving more than her due to payment records.

Your situation sounds odd to me, I thought to have a clean financial break all joint borrowings had to be split/repaid, ie houses sold, loans repaid, bank accounts closed.

Is there no chance you could sell the house to your partner? That way at least you'd have no joint borrowing with your ex.

Your ideas about a clean break are misconceived. It is a perfectly normal scenario for one party to hold a charge on the other party's house against their equity until the youngest child completes their education.

The preferred option is for everything to be split so that there is no ongoing financial link between the parties but that is just not possible in every scenario. The non resident party is not expected to pay any more towards the mortgage though, they simply don't get their capital sum until later. It should be the only retained financial link though, you are right about the loans and accounts.

50/50 is only the starting point on a presumption of equity. This percentage can be balanced either way for numerous reasons until a figure is agreed.

The only thing I find odd about the OP's situation is that cohabitation appears not to be a trigger points on its own. That is not normally the case.

Sarahsaver

It's not fair that he gets 40% as he did not contribute that much during the 'marriage'. That was never taken into consideration.

mrsdee

Well, as I think a previous poster has mentioned, the agreement is in place (and both parties agreed) - now you need to enforce. Like previous poster, I am surprised that your cohabitation or remarriage did not trigger the payment as this is v common. It is assumed that your new husband would either buy out your ex's portion, or will at least be contributing to your household and therefore it is not expected that your ex should continue to give you the long term "loan" of 40% of the property that you, your children and your new husband are living in. the point of you retaining his portion of the equity is to give stability to the children whilst they are growing up.

Sarahsaver

I did NOT agree and at the time I told the judge I thought it very unfair. As we cannot afford to pay him off NOW we can't do it. And I will NOT be selling this house. Of course my new husband contributes to the household, unlike the ex - which is why he is an ex!

Bossyboots

Sarahsaver wrote:

I did NOT agree and at the time I told the judge I thought it very unfair. As we cannot afford to pay him off NOW we can't do it. And I will NOT be selling this house. Of course my new husband contributes to the household, unlike the ex - which is why he is an ex!

So do you actually have a consent order or was the order made by the court, having heard live evidence?

If the latter, are you absolutely sure your order provides that the clause about the children overrides all of the other trigger points? This really is not the way it is normally done and if a judge made the order in court, it makes it even more strange that it should have been done that way although if you think it through logically, it does seem sensible if the priority was to keep the children housed. However, it is unusual.

Do you have a copy of the order to hand to check carefully through just to make sure?

Sarahsaver

It is right the charge on the property is only exercisable provided the youngest child has left full time education or is aged 18. Thing is there IS no charge until the ex will sign the transfer deeds! I do have a consent order, that does not mean I consented to it! LOL;)

mrsdee

Just a thought - is the child maintenance also included as part of your final settlement document? If so, and he is not paying it, I am not sure that the agreement would hold up, as the two are usually linked. E.g. the larger the amount of his equity he is "loaning" you, normally the lower the amount of child maintenance paid (as he is in effect subsiding your living costs). If however he is not paying child maintenance then the agreement may no longer be valid. It is worth checking. If he is "in hiding" in the US then I am not sure how he can come and ask for his 40% of the house, when he has not kept to his side of the deal in paying child maintenance.
My husband is in the same situation - his ex wife has a house of which he owns 30% of the equity. Their clean break divorce means she is paid a certain amount of child maintenance every month, which he continues to pay. At one point, when she would not allow him to see the children for a number of weeks, we considered wittholding payment for a while to see if that would get her to change her mind but we decided not too, in case this jeopardised his eventual return of the equity.
It might be helpful to see it that way as a long term "loan". In the same way that we have a very large mortgage between us, as my husband had no equity to put into our home when we first bought it - it is only right that what is rightfully his is returned eventually, regardless of how bitter you might feel about him now. Be glad that you have a lovely new husband who obviously cares for you and your children and is bringing money in, so it's not all bad!

Prudent

As far as I know, Sarah's ex avoids paying maintenance. Perhaps this can be deducted from any money due to him in respect of the house? Would you be better to buy him out now (after deducting past and future child support of course). It may be very little after deducting that and perhaps you could look at that percentage of your loan being on interest only?

Bossyboots

Child maintenance and the other issues in the consent order are not linked. The whole document does not fail simply because one party does not keep to a clause. The solution there is to return the matter to the court.

mrsdee it is a very good job your OH did not withhold maintenace as a means of seeing the children. This is something that the courts get very cross about and it really would not have done him any favours had he needed to return to court for a contact order or enforcement. It won't have made any difference to his entitlement under the consent order, but it would not have gone down well.

Sarahsaver, I presume you signed the consent order even if you did not agree with it. The court had the power to rule it unfair but clearly did not agree with you. It seems your best bet if you want to move on with this is to apply to the court for a hearing for enforcement.

Do you have an address for your ex? If so, write to him telling him that unless the paperwork is signed by x day you will have to apply to the court for them to sign the documents on his behalf. State also that you will be seeking a costs order against him to be enforced against his share of the property. This is usually enough to shove a recalcitrant ex into doing what is necessary. In the worst case scenario, the judge has the power to sign the documents for him so if you have no way of contacting him you will need to use the argument that he has disappeared without signing the deeds and you cannot trace him.