Handing over 40% share in equity in lieu of child care payments

MataNui

The plan is reasonable and logical providing you can protect yourself against future CSA liabilities. I would caution on another issue though.

your 'legal' liability for CM is based on your income. you are basically thinking of handing over an asset of significant value to cover that liability in advance. You have done the math based on your situation now. What if your situation changes?

If you start to earn more they may make a claim against that and argue that anything you put in place now to limit future liability is void because your liability is legally a lot more.

Also on the flip side you may become ill or have an accident leaving you unable to work. You will then have a much reduced (almost nill) legal liability for CM and at the same time have desperate need being able to liquidate that asset for yourself.

I think you need to think very carefully. Your best way forward may be some form of gradual equity buyout based on your legal CM liability reviewed annually. So if you earn more they acquire the equity faster. If you cant work and have less liability then you would retain that equity. You definitely need to get proper legal advise as you may need to keep the right to force a sale at some point in the future.

pigpen

If you are not currently paying the mortgage your share of equity is as it was the day you stopped paying and they took over, unless this has changed in the last few years.. so your 'share' won't go up as the balance reduces.. it will stay the same... so you can easily calculate based on your current circumstances how long you would not pay CM for. He was also made redundant partway through the agreement and this had no impact on the court order once it was already in place that was it.

Our court order specified 24 months of not paying maintenance would cover the tiny amount of equity that was in the house (ended Oct. 2013).. I could not apply for CM in that period otherwise I was liable for prosecution as I would be in breach of the court order so she would not be able to apply until a specified date, so it is not only for one year, that is not correct. He only paid into the mortgage for 3.5 years so equity was about £10k.

There is also the possibility of another house price crash and the house not being worth what it currently is in which case you may still lose out there.

If you sign the deeds over to her and she defaults on the mortgage you are still liable and it will show on your credit file. As the deeds to my house are in my name he cannot force a sale to get himself off the mortgage regardless of the ages of the children, but, I also cannot remortgage or change our mortgage deal without him signing the paperwork.. I'd rather boil my tongue in acid than ask lol. He has another mortgage so it hasn't prevented him buying another house either.

MartinW6

Wait.... so I can potentially get a new court order drawn up stating that my ex-wife cannot claim CM for a period of time (with her agreement) that's longer than a year? From earlier responses, I was led to believe this wasn't possible.


My share in the equity when I stopped paying the mortgage was around £65k - my CM liability is around £39k (based on present salary) - therefore I think I could state a date in the agreement when my CM payments are due to stop completely anyway (my eldest would be in 2020 and my youngest 2026). I'd be willing to take the hit.


As I've said previously; they're not in a position where they could afford to lose my CM. However, when we discussed it, they felt that by this time next year, they probably could.

pigpen

MartinW6 wrote: »

Wait.... so I can potentially get a new court order drawn up stating that my ex-wife cannot claim CM for a period of time (with her agreement) that's longer than a year? From earlier responses, I was led to believe this wasn't possible.


My share in the equity when I stopped paying the mortgage was around £65k - my CM liability is around £39k (based on present salary) - therefore I think I could state a date in the agreement when my CM payments are due to stop completely anyway (my eldest would be in 2020 and my youngest 2026). I'd be willing to take the hit.


As I've said previously; they're not in a position where they could afford to lose my CM. However, when we discussed it, they felt that by this time next year, they probably could.

Yes you can it isn't a 'consent order' it was a financial something or other IIRC... but mine was 2 years.. If I knew which box I'd stuffed it in I would find it for you.. essentially it was a financial contract between us both which the courts AND the mortgage company had to agree on and endorse.. it took about 18 months to get sorted but that was more to do with the stupidity of the mortgage company and solicitors than anything else. but it ran from Oct '11- Oct '13.


I really needed the CM too but he wasn't paying it anyway so it didn't make a great deal of difference at that time.

You really need to sort this through a solicitor.. I guess there may have been something in my circumstances that made it different but I'm sure something similar could be worked out for you.

MataNui

As far as i am aware PigPens solution isnt perfect. You can apply but there is no guarantee you would get. If this was refused you would be back to square one (them with your house and you potentially being liable for CM and have no comeback).

There is no legal mechanism that will guarantee you immunity from a possible CM claim for as long as you need it for.

You need to decide (discuss with them) what is wanted and what is possible because at the moment there seems to be a bit of a gulf between the two.

MartinW6

There's no gulf in what is wanted (my share of the house in exchange for a % of the equity which I'm due). Unfortunately, there is a gulf in what is possible. Right now I'm not even sure they could get me off the mortgage if I said forget the equity (which I wouldn't do; I'm willing to be flexible, but not that flexible).


It's a real shame. I'm willing to be really flexible, but there's no way they can increase the mortgage to buy me out. I think I'll just have to continue sitting tight unless there's another way to release my equity without them having to increase the mortgage?

HoneyNutLoop

pigpen wrote: »

If you are not currently paying the mortgage your share of equity is as it was the day you stopped paying and they took over, unless this has changed in the last few years.. so your 'share' won't go up as the balance reduces.. it will stay the same... so you can easily calculate based on your current circumstances how long you would not pay CM for. He was also made redundant partway through the agreement and this had no impact on the court order once it was already in place that was it.

Our court order specified 24 months of not paying maintenance would cover the tiny amount of equity that was in the house (ended Oct. 2013).. I could not apply for CM in that period otherwise I was liable for prosecution as I would be in breach of the court order so she would not be able to apply until a specified date, so it is not only for one year, that is not correct. He only paid into the mortgage for 3.5 years so equity was about £10k.

There is also the possibility of another house price crash and the house not being worth what it currently is in which case you may still lose out there.

If you sign the deeds over to her and she defaults on the mortgage you are still liable and it will show on your credit file. As the deeds to my house are in my name he cannot force a sale to get himself off the mortgage regardless of the ages of the children, but, I also cannot remortgage or change our mortgage deal without him signing the paperwork.. I'd rather boil my tongue in acid than ask lol. He has another mortgage so it hasn't prevented him buying another house either.

If you had applied after 1 year, the CSA/CMS would have had to accept your application, because the courts can't waive your statutory right to apply. Yes you would be in breach of the court order, and he could have taken you back to court about that, but the CSA/CMS application would not have been halted because of your order. Only the applicant withdrawing the application would halt the process in that scenario. What the court would then do about your breach is a whole other can of worms.

Edited to add link to an Upper Tribunal decision focusing on whether or not the CSA has jurisdiction over the court order in question in this case. It outlines the legal considerations quite clearly:
http://www.osscsc.gov.uk/judgmentfiles/j3835/CCS%204115%202012-00.doc

pigpen

HoneyNutLoop wrote: »

If you had applied after 1 year, the CSA/CMS would have had to accept your application, because the courts can't waive your statutory right to apply. Yes you would be in breach of the court order, and he could have taken you back to court about that, but the CSA/CMS application would not have been halted because of your order. Only the applicant withdrawing the application would halt the process in that scenario. What the court would then do about your breach is a whole other can of worms.

Edited to add link to an Upper Tribunal decision focusing on whether or not the CSA has jurisdiction over the court order in question in this case. It outlines the legal considerations quite clearly:
http://www.osscsc.gov.uk/judgmentfiles/j3835/CCS%204115%202012-00.doc

No I couldn't without facing a possible custodial sentence. it was written in to the order.. and long term I benefit why would i risk losing my home and children and gaining a criminal record?

Needless to say the second that order expired the claim went in

HoneyNutLoop

pigpen wrote: »

No I couldn't without facing a possible custodial sentence. it was written in to the order.. and long term I benefit why would i risk losing my home and children and gaining a criminal record?

Needless to say the second that order expired the claim went in

You made the decision you didn't want to risk it (which I understand) but you're advocating the position that because you wouldn't risk it, no-one would, and that you couldn't apply. You could, you chose not to because you thought the consequences were too high. Your court order only offered your ex protection that you would not apply to the extent that you voluntarily complied with the court order. Do you really want to bank on the fact that MartinW6's ex will make the same choice you did?

I really don't think anyone should make this kind of decision without getting thorough legal advice and understanding the risks and consequences if things don't go to plan.

pigpen

no.. it stated I COULDN'T and if I tried I would face prosecution for being in breach of the court order.. I know what it said.. I authorised and signed it.