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familylawexpert
familylawexpert, Family Solicitor
Category: Family Law
Satisfied Customers: 311
Experience:  Substantial experience (14yrs +) in divorce, financial cases, cohabitation, pre-nuptial agreements and civil partnerships.
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Mac, I'd like to talk to you about the previous question I asked

Resolved Question:

I'd like to talk to you about the previous question I asked.
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
Can I be of assistance at all?
Clare
Customer: replied 2 years ago.

Hi, i'd like familylawexpert to answer. Please opt out.

Expert:  Clare replied 2 years ago.
Hi
Done
Clare
Expert:  familylawexpert replied 2 years ago.
Hello,
I'm sorry for the delay in replying - you are correct that I answer questions here less often, as I have found myself with less time to do so. However, I'd be happy to help you again.
Best,
Mac
Customer: replied 2 years ago.

Hi Mac,

Thanks very much for getting back. I wonder if we could pick up the conversation threads I had with you last year. http://www.justanswer.co.uk/family-law/82kpp-friend-going-difficult-time-separated.html

Is it possible if we keep the conversation consistent by you replying there?

thanks!

Expert:  familylawexpert replied 2 years ago.
Hello Sarah,
The website doesn't work like that, but I do have the previous question on my screen so ask away.
Kind regards
Customer: replied 2 years ago.

Hi Mac,

Thank you very much for your response. To follow our last conversation threads, there have been some updates to my partner's divorce. However, we felt that he's a bit trapped at the moment. You might have remembered from our last conversation that they were going through mediations. They had had a number of sessions with the mediators, unfortunately, she didn't engage and some sessions ended up with her being hysterical or asking for more money. It seemed like mediation didn't work for them. The only conclusion he's got from the mediation was that the children want to stay in the house and are not especially bothered about contact with him.

At the moment, she only had one more session available on her legal aid, and my partner is still paying his costs off. Having said that, the divorce did proceed. She finally agreed to be divorced for her unreasonable behavior, and we're told by the solicitor that the Decree Nisi was supposed to have been issued on 23/12/2014.

The financial situation is getting more and more difficult for my partner because he's paying this unaffordable house mortgage. The problem is, before the divorce proceedings started, she has taken out a land charge (quite a while ago) preventing him from selling the house. When they're waiting for the divorce result, he has been paying the mortgage (£1205/month) and some expenses like football club, school lunch, tennis course etc. for the children. And now she has issued a request for Child maintenance effective from 27/12/2014. It came with a surprise to us because he's still waiting for the result of the divorce from the Court. The CMS are sending him a form to apply for a reduction as the amount's unaffordable for him to pay on top of the mortgage. He's contacted the building society, and they're willing to discuss a reduction in payments if the reduction from CMS doesn't work. But for long term (and as you suggested before), my partner would like to sell the house. She has signed up for the various benefits she's entitled to including JSA. From what we understand, she can get housing benefit and my partner would actually be happy to pay her deposit or other removal expenses.

The problem is that she won't discuss this as an option at all. At the moment, my partner has an expensive solicitor waiting on him to start sending things for the "full and frank declaration". We're not very confident about the solicitor because it seems like she's been charing him a lot just to send a standard letter, sometimes he had to draft it first and she'd even made mistakes like putting the wrong name etc. He still now has a £250 on account with the solicitor. He's worried that a lot of more money is going to go nowhere with the ex-wife not engaging until she's told by the Court to do so.

Questions:

1. In this case, would it be simpler for him to handle the rest of the divorce procedures by himself?

2. What would you suggest him to do by steps?

3. We understand that he can start Decree Absolute after 6 weeks of the Decree Nissi date, does he have to finish the financial and child care agreement before that, or can he just go ahead to pursue Decree Absolute?

4. Is there any way that he can propose to sell the house? From what we understand is that she doesn't have any income apart from the benefits she has signed up so she cannot afford the mortgage. We have no idea about her financial situation because she kept it all secret, however, accidentally we found out that she's actually renting out a room (although after that she explained very vaguely that she's not charing that lodger much because the lodger was around to help with the children). So there's no way we can no what income she's having.

5. Contact with children: is there any way that he can make it on the legal terms? He has been trying very hard to maintain contact, but setting up each and every visit has been a struggle. Every time she'd make excuses to make things difficult. Sometimes she even pretended that she didn't know they had arranged, and when he showed up at the door step, she'd make the children to refuse to go out with him and he had to leave. He's been calling the children frequently but very often no one picks up the house phone, or she doesn't pick up her mobile phone. So far, the children have been with him overnight about 5 times in the 18 months since separation, and a further maybe 10 meetings for lunch/outings.

Sorry if it's a bit complicated. Please let me know if there's anything else I should clarify. Thank you very much for your time!

Customer: replied 2 years ago.

Hi Mac,

Sorry my question was a long one. I'd appreciate if you would be available to answer.

Thanks!

Expert:  familylawexpert replied 2 years ago.
Hello Sarah,
Using the numbering of your questions:
1. Yes, he probably could handle the proceedings himself, if he was prepared to do the work (and ask occasional questions if necessary).
2. If financial proceedings have been started, he should prepare his form E financial statement (which is probably the document his solicitor means when referring to full and frank disclosure). If financial proceedings are not yet started, he should start them. (It requires a 'Form A' which he can get from the Court, or search for online.)
3. Normally decree absolute is not obtained until the financial proceedings are complete - ie a final financial order made (which can be one made by agreement). It is not related to childcare arrangements.
4. He can propose to sell the house, but she obviously won't agree. If there are proceedings, he should be asking the Court to order that the house is sold. However, on a more practical level, he can tell the wife that he does not agree that the house can be kept and that it should go on the market in the spring, and that he will stop paying the mortgage in the summer (to give it time to be sold). If he stops paying the mortgage, the bank will force a sale anyway.
5. If mediation about the children has failed then he should consider issuing children proceedings himself (which he can do by filing form C100 - again available from the Court). The first hearing will be one where the Court tries to get them to reach an agreement. There are lots of people who make this application without a solicitor.
I hope that is helpful.
Customer: replied 2 years ago.

Hi Mac,

Thank you very much for your time.

1. Can he not pay the maintenance yet until the financial proceedings are ordered? Will he get into any trouble? Or would you suggest him starting paying now? She has issued a request effective from 27/12/2014.

2. How do the proceedings work? Will she be required to fill in the form as well? Will the proceedings be delayed if she refused to engage or cooperate (it is very likely that she will simply ignore it and won't engage by saying she doesn't understand English)?

3. From your experience, is this why many people take a long time to get a divorce - to reach agreements before decree absolute? In his case, will there be any consequences/disadvantages to him if he gets decree absolute sorted before the financial proceedings? Of course he wants to start sorting the financial arrangements now, but it's just an possibility he read the UK law website but I'm worried that we might interpret it wrong..

4. As you suggested, he should start by telling her that the house should be sold. However, she has taken out a land charge quite a while ago preventing him from selling the house. She surely knows about her right. Does it mean that he cannot put the house on the market if she doesn't withdraw that land charge?

5. I hope you won't mind me asking this but how do the financial proceedings work? Will the Court look at the finance and decide the order, or does he need to provide a statement to explain the situation? His monthly income is 2298, mortgage is 1205. I'm currently paying his rent (but I'm NOT living there) but that won't be shown on his bank statement. Will the rent be disregarded as part of his outgoings?

6. Do you think the Court will NOT order the house to be sold as long as he still has money in his banks account?

Thank you so much for your time. I really appreciate it.

Expert:  familylawexpert replied 2 years ago.
Hello Sarah,
I am sorry for taking so long to respond. To answer your questions:
1. He should comply with the timetable issued by the CMS in relation to maintenance. Children's maintenance is not connected to the divorce/financial proceedings.
2. Yes, they will both have to complete a financial statement form. If she does not cooperate there may be some delay, but not very much and ultimately the proceedings will go forward without her cooperation if necessary.
3. It is most common for decree absolute to be delayed until after the financial agreement, but it is not compulsory. If he wants to apply for decree absolute he can (and if she wants to object, she can - in which case a Court would decide whether a delay was okay. He is not prejudiced either way.
4. The land charge is less relevant than the fact that she is living there, but no he cannot sell it in these proceedings without a court order, which he won't get before the end of the financial proceedings.
5. Yes, the Court looks at all of the finances before making the final order, including bank statements etc. Her lawyer may spot that he is not paying the rent (as there'll be no rental payments on his bank statements), and that might make a slight difference to how much disposable income he is deemed to have. Ideally you would not be paying the rent until after these proceedings are over (but equally he's got to have a home).
6. It is not as simple as that - it depends on both of their housing needs, the children's needs etc. In general terms, I would say that having some savings does not necessarily mean the house will not be sold.
familylawexpert, Family Solicitor
Category: Family Law
Satisfied Customers: 311
Experience: Substantial experience (14yrs +) in divorce, financial cases, cohabitation, pre-nuptial agreements and civil partnerships.
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