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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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I want to seperate from my husband. two children and property

Customer Question

I want to seperate from my husband. two children and property involved... what are my rights
Submitted: 2 years ago.
Category: Family Law
Expert:  UKfamsol replied 2 years ago.
Hello and thanks for your question.

I need a bit more info to be able to answer:

How old are the children and who has been their main carer up to now?
How much is the property worth?
How much is the total mortgage secured against it?
What other assets and debts are there?
What annual income do you each have from all sources
Customer: replied 2 years ago.
My husband and I work full time. He has worked a lot of weekends so kids have been with me primarily.
House worth 310,000 and mortgage or approx 227, 0000.
Children 4 and 2.
Childcare bill massive. I am main earner.
Other debt is a car loan. That's it.
I earn 41000 a year and him approx 18-20,000 with a lot of cash in hand jobs.
Expert:  UKfamsol replied 2 years ago.
Hi again and thanks for the info.

The issues are
a) kids
b) divorce
c) property & finance

a) kids - you need to decide between you I) who the kids will live with and ii) what the arrangements will be for the other parent to have time with the kids.

It sounds like the kids will be with you - but you need to agree generous contact arrangements with your husband - but which , if you can't reach agreement, either one of you can apply to court for a child arrangements order, to ask the court to decide what should happen - but court proceedings to be avoided if at all possible. If you do decide to got to court, you'll need form C100 here:

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/c100-eng.pdf

The court procedure is the same married couples who separate or divorce and for cohabiting couples or civil partners who separate.

You can negotiate the arrangements for the children either between the two of you, or via solicitors' correspondence or via mediation. The family court anyway requires the parties to have attempted mediation before it will consider an application to court.

Here's where to find a local family mediation service:

http://www.familymediationcouncil.org.uk/find-local-mediator/

Here's where to find a specialist family law solicitor:

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

b) divorce - you can divorce if you have been married for at least a year - choose from his behaviour; or his adultery (but only if he admits it - too expensive to prove); or wait 2 years and choose separation with his consent to a decree of divorce, or wait 5 years to choose separation for 5 year whether or not he consents

c) finance & property - the only way to get a legally binding agreement is via a court order (which can be a consent order without going to court) - but the court's powers to make an order re matrimonial finance & property do not come into play until after a divorce petition has been filed at court. Or - you can negotiate an agreement and get a solicitor draw up a post-nuptial settlement - but it's not legally binding.

re what that agreement or order should be:

the court starts from the position that the assets should be divided 50:50 unless there is good reason why not - eg one person earns significantly less than the other and/or is providing a home for dependent children.

In your case, altho' you earn much more than your husband, you will be providing a home for the kids so those 2 elements cancel each other out. Neither of you earn enough to take on the mortgage alone, so it's likely that the house will have to be sold, and agreement reached on how the net sale be divided. Your mortgage capacity is 3 x 41,000 = £123,000, with say 50% of net sale proceeds of say £85,000 (to allow for costs of sale) = £42,500, that would give you £165,000 to rehouse yourself & kids, - if that's not enough for a small 3 bed house, then you could argue for more - especially if you are taking on the childcare costs & car loan - but you won't get 100% because the court has to consider the financial & housing needs of your husband as well.

The best advice I can give you is to negotiate, NEGOTIATE, N E G O T I A T E! because going to court is stressful , time-consuming and expensive.

See above for links to mediation services & good family law solicitors.

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

Thanks and best wishes....



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