Adult sons PIP paid into my account and household income for divorce

mistercobain

I would appreciate some advice please. I have 2 adult sons who both receive PIP. I am DWP appointee for both and benefits are paid into my account. 

I am divorcing and my soon to be ex claims that my income (CA and UC) should include my sons PIP (and ESA for one of them) as it is really my income/household income for the purpose of working out financial settlement. 

He earns about £75K PA has a public sector DB pension and cohabits with his new partner. Child maintenance has ended and he pays no spousal maintenance. 

We were married 30 years and I am 59. I have no private or occupational pension and not able to work because of caring responsibilities. 

There is no marital property, the pension is the only marital asset. I can claim my share of the pension from age 60. 

He proposes a clean break with no spousal maintenance and 50% of one pension fund that was frozen five years ago but 0% of the scheme that replaced it. 

To complicate matters he pays the mortgage for the Joint Borrower Sole Proprietor loan. My son is the sole proprietor but I live in a room in his house and manage affairs on his behalf.  He proposes to keep paying this (9 years left). 

He says he deserves to keep all his income now and more pension when he retires because he doesn’t own property whereas I should be considered as practically owning property because I can live with my son til I die/go into care. 

I can’t get through to citizens advice and the mediator wasn’t sure of the position. 

Thanks for reading. 

Hoenir

What advice has your solicitor given. 

caprikid1

"My son is the sole proprietor but I live in a room in his house and manage affairs on his behalf.  He proposes to keep paying this (9 years left). "

Was this ever a joint property ?

The courts will start at a 50/50 split, I cannot see any spousel maintenance being awarded at this point given you have no children under 18  and housing needs are met.

Given your husband is committing to pay 9 years of mortgage the 5 years lost of the new pension does not feel too bad. I find it odd that there is property in your sons name but not one in you and you ex ? Sounds like tax planning gone wrong to be honest. 

Albermarle

Normally a 'final and legal financial settlement' is a better way of sorting out finances as part of a divorce, rather than trying to sort it out yourselves informally. 
In this case your respective solicitors can hammer out a ( hopefully) fair agreement, where you seem to be struggling to do that.
Perhaps more importantly it puts the whole thing to bed for ever. There can be no later attempt to renegotiate/quibbling over what was agreed as it will be made legal by the court.
I can guess in your case that even if you managed to come to an agreement today, it may well unravel in future.

mistercobain

I don’t have a solicitor as not eligible for legal aid and can’t afford one. Legal Aid are funding mediation so I’m exhausting that route and will have to apply to court if agreement can’t be reached.

My son’s house was bought in his name and had never been a joint asset of mine and soon to be ex. 

My husband and I lived in private rented sector for the last 15 years. The house was bought in my son’s name to provide him with a secure home - he is unable to work (autistic with severe social anxiety/communication needs which meand that he is unable to speak with anyone or leave the house). He is unable to deal with renting but has no LD and unwilling to live in supported accommodation. 

I agree that housing needs are met at the moment but living with a relative with no security of tenure leaves me in a very vulnerable position. It will be up to the courts to decide if this is fair. 

I had a free session with a solicitor who said I am entitled to interim spousal maintenance of £500-£700 per month due to a surplus even after my sons mortgage and spouses rent and the mediator suggested that I was entitled to spousal maintenance after divorce due to my low income, long marriage and inability to work due to caring and so be financially independent. 

I don’t agree that I should give up pension entitlement because my soon to be ex pays the mortgage of our son. He is not paying my mortgage and would pay it if I didn’t live here. 

mistercobain

As I understand it any agreement that was reached through mediation would form the basis of a financial order that would be ratified by the court, if fair, so there is no option to backtrack or renegotiate. 

The mediator expressed concern that my soon to be ex was using the payment of my son’s mortgage as a bargaining chip to force me to agree to an unfair split of assets and the court would not accept this. 

Albermarle

mistercobain said:

As I understand it any agreement that was reached through mediation would form the basis of a financial order that would be ratified by the court, if fair, so there is no option to backtrack or renegotiate. 

The mediator expressed concern that my soon to be ex was using the payment of my son’s mortgage as a bargaining chip to force me to agree to an unfair split of assets and the court would not accept this. 

OK so the mediator is sort of like a solicitor representing both sides at the same time ( and cheaper), and working towards a legal financial order, so that is good.

mistercobain

My main question relates to how I complete the financial disclosure document for mediation. Do I count my son’s income as household income and then calculate outgoings for the family or do I focus as an individual on my sole income and share of outgoings? 

How should PIP be treated - as my income to meet normal outgoings or as income belonging to my sons to pay costs of disability?  Because disability costs can be lumpy how do I class anything left over from monthly payments?  Soon to be ex considers anything left over to be my savings and wants 50%. Even though he knows the money wasn’t paid to me but as an appointee and was paid by PIP and is earmarked for known and possible future costs relating to disability. Even if I pay the money to my sons he says I am hiding my assets because it was paid into my account before being transferred. 

Spoonie_Turtle

Your ex can say what he wants but the money is your son's.  The claim is for him, the money is paid to be used for him.  In DWP's eyes you are not connected to your son, you only administer his claim because you are his appointee.

I don't know if it's helpful or not but if you could open a separate account for just your son's benefits to be paid into, your ex would have nothing to twist about it all.  (Not blaming you in the slightest, just demonstrating how flimsy his argument is.)

Also here's another way to look at it: hypothetically speaking, if you died, your son's benefits would continue.  If he died and you were still alive, they'd stop.  His benefits are nothing to do with you, they're definitely not your income.

tacpot12

I disagree that you should be regarded as owning a property because you can live with your son until you die/go into care.

The point about a financial order is that it deals with actual finances, and you don't actually own a house. You probably can live in your son's house forever, and if your son asked you to leave, you would get financial help to rent somewhere from the benefits system, so you will never be homeless, but you will never own a house either. 

That said, I agree with capriki1 that 50% of the main pension and the loss of the later scheme doesn't sound too bad, given that he will pay the mortgage. The main pension will be final salary and therefore based on his £75K PA. 

I would say that he can't reasonably assume that your son's PIP is 'household income' as it is awarded to help your son with the specific costs that his disability creates. It is therefore 'extra' money that another household would not have, and yet still the marital assets and financial settlement woudl be worked out on the basis of a 50/50 split. 

He seems to be expecting you to do all the caring for his son, for no compensation other than the Carers Allowance, that the state pays. Now he might think that he is indirectly paying you this, because he will be paying 40% tax, but I am inclined to think he should be contributing directly to you for this care, and that this should continue until you are no longer able to care for your son. He may find it difficult to do so if he knows that you benefit from his PIP in any way. However, I think you should put it to him that a small contribution from him - say £120 month - would make a big difference to you You could forgo this for the period that he is paying the mortgage, i.e. it would start in 9 years time (The agreement should record the date the payment will start and the only condition should be that you still receive Carers Allowance for looking after your son - don't allow him to link it to the morgage being repaid, otherwise he may just reduce the rate at which he repays it).  

mistercobain

I think I would benefit from the courts making the decision. I doubt they would be sympathetic to an above average salary NRP claiming a right to his disabled sons’ benefits. As appointee I feel it is my duty to ‘save’ enough to be able to meet costs. Eg my son had a £500 dental cost, £600 travel, £200 DSA and £200 ADHD costs in one month (aside from routine costs) which I could only afford because I had budgeted. 

At the moment my son’s benefits are subsidising me. They pay a greater share of living costs because my benefit doesn’t cover my costs. They would have more money if I didn’t live here. 

Is it fair that they support me through benefit which is not then available to support disability because my soon to be ex does not?