Divorce financial order

Pete3398

I'm in the early stages of divorce and would like peoples opinion of what may be a sticky situation.

We want to keep things amicable between us moving forward as we both feel it's important to keep a good relationship between us - for both each other and our 2 kids.

Our mortgage has been paid off but my wife has been gifted various lump sums from her family during the marriage equating to around 60% of the total mortgage amount.

My son is autistic and has just settled into a new school which is the best in the county to support his needs. If my wife had to move she would have to be to a cheaper area and our son would have to change school. Also 20% of money recovered from downsizing would be eaten up by moving costs. Something we both want to avoid.

We want to come to an arrangement that I have the kids 3 nights a week but it will be a struggle for me to afford to live nearby and her to keep the family home. She has initially suggested deducting the value of the gifts from the current house value and then split the leftover 50:50 (I'd get about 25% of the home's current value). She should then be able to just about afford a mortgage to stay in the family home. However this leaves me with at best, only being able to afford a 2 bed flat while staying in the local area. This isn't ideal with 2 kids but should be manageable.

The kids wellbeing is my number one priority but at the same time I don't want to be taken advantage of financially. I know the financials are on a "needs" basis and the kids will take priority with the courts. The question is how far do my needs get compromised for the sake of the kids? It's probably a question for a lawyer but would the courts see this arrangement as unfair in my wife's favour? It'll be just below a 25:75 split if the gifts to my wife were taken into account.

elsien

Don’t forget it’s not just about the house it’s about any other assets as well. Your pensions, for example.
has one of you had a reduced income because of childcare? Are you both working and earning and what are your respective salaries? How much of each if you got in your pension pots or other savings? Can you trade off the value of the house against the other person’s share of the pension for example?
Could your wife downsize and find a cheaper property that wouldn’t involve your son moving schools? That may also mean her having a property that is not as nice as the one that she’s in now but a court looking at needs would look at both of you been able to house yourselves adequately as well. 
What agreement have you come to with regard to maintenance for the children? That needs to be carefully considered because you don’t want a situation where are you agree something  and then it goes to child maintenance service later on. 
I would suggest that any gifts from parents during the marriage unless recorded otherwise should really apply to both of you. So it’s really up to you how  much of that you want to forget it in order to keep things stable for your son

jlfrs01

I've been through something similar when Divorcing several years ago with 2 adopted daughters.

From a practical perspective, the childrens' needs are paramount and the Court's view is that children should be able to stay with both parents separately. Wherever you both live, the most ideal situation would be to have properties which are fit for purpose so it doesn't follow that one parent necessarily gets to keep the family home, live in a nice area whilst the other has to rough it and whilst property ownership is nice, it's not a right.

The gov.uk website has some very good, detailed guidelines on how the Courts view Divorce in terms of division of assets and so on, I found it incredibly useful to pick out the relevant bits to give to my ex which meant it was all above board plus it helped to remove the emotion. There will also be child maintenance to consider as well which can be considerable and is a fixed amount based on income from the paying parent's most recent earnings (the CMS will access HMRC to check records if you go down this route rather than have an arrangement drawn up with your ex and put through the Court as a Consent Order). There are also a lot of guidelines for this worth reading up on too because a paying parent may be liable until their children leave further education (which is not the same as higher education), or reach the age of 20, whichever is soonest.

Hope you can reach an amicable agreement which allows you both to come out of this in good shape

Pete3398

Thanks for your replies. I think it's a tricky situation and I'm not sure that there's a correct answer. In the eyes of the law the gifts are a matrimonial asset but it'll be an immoral move as it'll create conflict between me, my wife and her family. And I don't want to put the kids through something like that. Plus the money was only gifted a few years ago.

Neither of us think it's worth her selling the family home for somewhere else in the same catchment area. Houses rarely come up for sale here would only be 20% cheaper max than where we are now.

We don't have anything significant in the way of other assets and our pension pots are about the same. She works part time and I earn roughly double. We've provisionally agreed on a child maintenance figure. Based on the government web site it's 20% more than suggested. Without it being this high my wife would not be able to afford the mortgage to release my lump sum.

gwynlas

You do not mention the age of your children but both will leave school one day and possibly move away from home leaving your ex wife potentially sitting in an expensive house, nice area where she does not need to be.Any gifts given should have been intended for the good of the family unit as it stood so cannot be disregarded in total so maybe you could have a charge on the house to be redeemed in the future. You have to be practical and argue fairness if necessary.
Meanwhile if you are only able to afford a 2 bed flat invest in a good sofa bed for yourself if you want the children to have a room each when they stay.

Spendless

The Legal Queen, a solicitor  who is on SM often addresses situations that are similar to this.  She says that the court looks at the available money in order to see what is fair to both parties whilst taking the kids needs into account.

On the face of it it doesn't seem fair that your wife gets to keep the marital home, all the money gifted during the marriage (which as you correctly point out is seen as a marital gift to both of you thru the eyes of the law) plus you pay 20% over and above the maintenance allowance so your ex can afford the new mortgage whereas you need to hope you can find a 2 bed flat to stay in the area. Saying that is it difficult for the 2 kids to share - are we talking boy/girl teenagers or 2 same gender 6 year olds? 

Have you looked into the criteria surrounding your autistic child's school place? Can you both live elsewhere and him attend the same school if there's transport to get him there (my Dad used to drive a bus for a SEN school, it wouldn't have mattered where in the town someone moved to - they'd have just put said child on a different route - so long as there were discussions with the school first and they confirmed there was a space on the transport - without it it would involve speaking to the LA if it would then be the parents responsibility to get child to school or whether they would find an fund alternative transport such as a taxi) 

What is the view of your own solicitor over this? 

elsien

When you say, it’s immoral because it would cause conflict, and that’s not fair on your children, it does take two people to cause conflict.

 And it does appear that your wife may prioritising her needs/wishes over yours - You say that both of you want to keep things civil but the message coming across if that’s only if your wife gets what she wants.
It’s about balance which does seem to be lacking here a little bit.