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UKfamsol
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience:  Very experienced specialist family law solicitor, qualifed in 1994
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Can I put my home into a trust for my children whilst it is

Resolved Question:

Can I put my home into a trust for my children whilst it is mortgaged?
Submitted: 4 years ago.
Category: Family Law
Expert:  Joshua replied 4 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

Could you kindly advise why you would want to place your house in trust please?

Customer:

I believe my husband who has alcohol problems may seek a divorce & I wondered if I put the house in trust for the children who are adults would he then be unable to force me to sell it for a settlement. I have been married to him for 5 yrs & he moved into my home .

Josh-2010 :

Thanks. I had not anticipated this would be a family law orientated question which is not my speciality. With your permission I will ask a colleague who does specialise in family law to assist with this.

Customer:

Yes please,

Josh-2010 :

If you could kindly avoid replying back to me until you hear from one of my colleagues that would be helpful as replying to the thread before they are involved can lock the thread back to me meaning they cannot reply. You should receive and email when my colleague replies. Best wishes.

Customer:

I believe my husband will seek a divorce , he will not reconcillate & says he wants to leave. He has alcohol problems & is currently in a depressed & unpredictable state . I wondered if I put the house in trust for the children who are young adults none living with us.(None together but we have 2 each from previous marraiges) would he then be unable to force me to sell it for a settlement. I have been married for 5 yrs & he moved into my home which is in my name only. I have paid all utillity bills & living costs including the mortgage (small ammount is owed). I was thinking if I did this I would make no claim on his pension & the children would each recieve a share on my death.

Expert:  UKfamsol replied 4 years ago.
Hello and thanks for your question.

Once a divorce petition has been filed at court, then either side can ask the court to decide how the matrimonial assets should be divided, if the parties cannot agree between themselves.

The matrimonial assets are everything on your name, everything in your husband's name and everything in joint names. The court starts from the position that the assets should be divided equally - but then looks at reasons why that should not be the case. A pension entitlement counts as a matrimonial asset.

Some reasons why one person should get more than 50% would be if that person was to provide a home for dependent children, or had a significantly lower income than the other person.It doesn't sound as if either of these arguments apply to you. But you CAN argue that the full value of the equity in your house should NOT count as a matrimonial asset, given that it was a short marriage, and given that you owned it for some years before you married your husband (the longer you lived there before you married, the stronger your position becomes, and the greater the proportion of the equity you can argued should be ignored). It's also relevant that your husband did not contribute towards the mortgage or upkeep.

However, I do not think that it would be a good idea for you to put the house in trust for your adult children now. This is because if the case goes to court, very full and frank financial disclosure is required from both parties.(including 12 months bank and building society statements). If the court deemed that you had changed the ownership of the house to defeat in advance any potential claim by your husband in the matrimonial case, they would make an order AS IF you had not changed the ownership of the house.

But you and your husband might be able to agree that if you make no claim against his pension, then he will make no claim against the house - then you can leave the house to whoever you want in your will, without the need to put it in trust now. If you do reach agreement with your husband, that agreement can be made into a binding legal agreement if the court approves it as a "consent order" which is as binding on the parties as a court order made following contested proceedings.

If you and your husband find it difficult to discuss things, then mediation may be the answer. Here's where to find a local mediation service:-

http://www.familymediationhelpline.co.uk/find-service.php

Getting some face-to-face legal advice would probably help as well. Here';s where to find a good solicitor:-

http://www.resolution.org.uk/findamember/

Until a divorce petition has been filed at court, you won't be able to get a court order - but if you can reach agreement, a solicitor can prepare a deed of separation which you can both sign, so at least there's no ambiguity about what has been agreed.

I hope this helps and I wish you the best of luck.

I hate to specify - but please rate my answer ok, good or excellent - or I get nothing for my time!!! (so the website keeps all).)

Thanks and best wishes....

Expert:  UKfamsol replied 4 years ago.
Hello again.

I see that you looked at my answer yesterday - but you have not accepted it.

Is there anything you feel I did not cover in my answer?

Or is there anything you would like further clarification on?

Let me know! I'll do my best!

best wishes....
Customer: replied 4 years ago.

The answer is detailed but dosn't help me as It is not certain my husband seeks a divorce he hasn't mentioned that just he wants to leave & has looked at renting, he is stressed & I believe unwell due to his excessive binge drinking. There is no conversation between us, he just repeats he " dosn't want to be here any more or with me any more". He hasn't raised the subject of the house I just wanted to secure the property for all the kids, his & mine but obviously stay in the property if I could until my death. I could afford to pay off the 10,500 owing. If I did so could I transfer the ownership of the house into their names? I believe he will simply drink the money away over time.

Customer: replied 4 years ago.

also, Could I make him leave the home as the house is in my name?

Expert:  UKfamsol replied 4 years ago.
Hello again.

If your husband wants to leave, then let him leave. Then you have the house to yourself anyway, in practice. However, the legal position is not so straightforward - as I suppose you are wondering what your position would be if he decides he wants to come back. See 2) below.

1) The house is in your name - you can transfer it to whoever you want including your children - BUT - IF he decides to divorce you AND - IF he applies to court for a financial and/or property claim against you (which as a party to a divorce he would be entitled to do so), THEN there is a RISK that the court might say that you DELIBERATELY transferred the house to your children to PREVENT any potential claim by your (ex)husband. If that is the conclusion of the court, then the court MIGHT make an order in favour of your ex-husband AS IF the property was still in your name, and not your children's name. I just wanted to warn you of that possibility.

2. Even the house is in your SOLE name, while-ever he is married to you, your husband has the right to come into the house, and live there if he wants. This is called the matrimonial right of occupation. Once the divorce has reached decree absolute stage, he will have no further right to come into the house, and you can then change the locks.

Until decree absolute, the only way you can prevent him from coming into the house is by a court order called an occupation order. This is an order which suspends TEMPORARILY a person's property rights eg their matrimonial right of occupation - and the court will only make this order if their behaviour is VERY bad eg threats of violence or actual violence or REALLY bad harassment. The order usually lasts 3 or 6 or 12 months, and often the court attaches a condition eg you must file your divorce petition within 14 days of the order being made - because only once a divorce petition has been filed at court can the court make a FINAL order concerning finance and property associated with the divorce.

Him drinking and saying over and over again that he just wants to leave is very unlikely to be bad enough behaviour for the court to grant an occupation order.

So - if you do not want to risk him making a claim against you in a divorce, and you do not think he will start divorce proceedings, I suggest you just allow him to leave, but do not start divorce proceedings yourself either. You can do what you want with your own property - as long as you realise that if the family court looks at what has happened to the house and decides that you were trying to get rid of a matrimonial asset to avoid a claim by your husband, the the court's decision could assume that you still have that asset. You can anyway write a will leaving everything to your children, whether or not you transfer the house to them now.

Regardless of whether or not you & your husband divorce, I would advise you against transferring ownership of your house to your children, because as long as you are able to manage your affairs, it makes more sense to manage your own home yourself, rather than depend on other people's goodwill, even if they are your children.

I hope this clarifies things for you and I really do wish you the best of luck.

I would be grateful if you would now kindly rate my answer ok, good or excellent - or I get nothing for my time!!! (so the website keeps all).)

Thanks and best wishes....
UKfamsol, Family Solicitor
Category: Family Law
Satisfied Customers: 560
Experience: Very experienced specialist family law solicitor, qualifed in 1994
UKfamsol and 2 other Family Law Specialists are ready to help you
Expert:  UKfamsol replied 4 years ago.
Thanks so much for your positive rating & payment - much appreciated!
Customer: replied 4 years ago.

Thanks for the advice he left today& admitted sleeping with another woman last night . so best rid.I wounder if his adultury will be to my advantage?

Expert:  UKfamsol replied 4 years ago.
Well - it depends if you want to divorce him or not .... that's a fresh question!

best wishes....