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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34580
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I am divorced from my wife and she is living in our jointly

Customer Question

I am divorced from my wife and she is living in our jointly owned house. The equity in the house is +- £150000. We have 2 children aged 7 and 9 and I have been paying child support for them monthly. My ex has suggested that I hand over the deeds of the house to her in return for her stopping claiming child support from me. This works out in her favour overall, but I am trying to determine if this can be made legally binding, or can she go to court and request me to pay child support at any point in the future?

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.
How much is the house worth and how much is outstanding on the mortgage?
What other assets are there and what income do you each have?
Clare
Customer: replied 2 years ago.

The house is valued at £260000 and the mortgage is £112000. There are no other assets. I earn £26000 pa and my ex earns £14000 part time as she is studying as well. I am currently paying both the mortgage and child support and am having to live with my mother as I don't have enough income remaining to be able to live on my own. My ex won't agree to nay of the other options I've put forward other than this one of me giving her my share of the house in return for her not asking for any further child support. However, I've been told that even if we agree to this, she can go back to court at anytime and ask for it to be reinstated so I don't have any guarantee that I won't lose the house and still have to pay child support.

Expert:  Clare replied 2 years ago.
Hi
May I ask why you are continuing to pay the mortgage and the child maintenance?
Clare
Customer: replied 2 years ago.

The house in jointly owned and I've been unable to reach an agreement for over a year with my ex so have continued to pay the mortgage otherwise my credit rating will be impacted and I intend to buy again in the future. I have been paying child maintenance because I agreed to that when we got divorced. We have been trying to reach an agreement about the house for over a year, and this is the first time my ex has agreed to anything. My only other resort would be going to court, as I've tried mediation and a solicitor and she is blocking me at every turn.

Expert:  Clare replied 2 years ago.
Hi
May I ask why you do not wish to take the court option?
Clare
Customer: replied 2 years ago.

I've been told that it could be very expensive and there is a good chance that the judge's decision will be that my ex-wife keeps the house until the children are of age, as she also has 2 older children from a previous marriage, and I may then get some of the equity when the house is sold at that stage. I don't have much money for solicitors, and can't afford an expensive court case.

Expert:  Clare replied 2 years ago.
Hi
It is only expensive if you use a lawyer to do everything - if you manage most of it yourself it need not be costly!
How much would a cheaper three bedroom property in the same school area cost to buy?
Clare
Customer: replied 2 years ago.

It would cost about £170000. Do you think there is a chance the judge would advise selling the house and dividing the equity now?

Expert:  Clare replied 2 years ago.
Hi
The priority for the Family Court is the safe and secure housing of the children until they are 18 - so you will only be able to force a sale before then if your ex cohabits - or you can show that if she moved she would still be able to purchase another property.
However just because the court would not order the sale does not mean that you would not benefit from a court order as you would no longer have to pay the mortgage as well as the child maintenance - but you would still be entitled to a share of the equity when the house was sold.
Realistically it is unlikely that the split would be 50/50 - a 60/40 split in her favour is more likely but the worst case scenario would be an 11 year wait
The suggestion that your ex has put forward has many flaws - if something happened and the children came to live with you then you would have lost a lot of capital for nothing - and you would also have to word the Order very carefully t=so that if she did ever apply to the CMS for maintenance you would be able to reclaim some of the property, and of course it assumes that she can obtain your release from the mortgage - highly unlikely in the current climate
If your ex will not co-operate then you have nothing to lose from issuing the curt application and taking the matter forward
Please ask if you need further details
Clare
Clare and other Family Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare

If I draw up a document stating that I will give my ex my half of the house in return for stopping child support payments, with a safeguard in case she goes back on her word and I get this signed and notarised, is this a legally binding document? Or would I need an attorney to formalise it and lodge it with the court?

Expert:  Clare replied 2 years ago.
Hi
You need a formal Court Order which will need to be very carefully worded as it is a matter of public policy that Child Maintenance cannot be dealt with in this way directly
Clare
Customer: replied 2 years ago.

Hi Clare

I have decided to proceed with the option of handing my share of the house to my ex-spouse in return for stopping the Mortgage and Child support payments. She has had agreement from the Mortgage provider that she can take over the Mortgage in her name. Please can you advise whether the legal document detailing that I will hand over my share of the equity in the house in reurn for no futher child support payments and if she does ever claim again, I will have a claim to 40% of the current equity of the house when it's sold of when the youngest child reaches 21, should be included in the Clean Break Order, or are they 2 separate documents?

I've decided against going to court as I can't afford the Mortgage payments and child support any longer as they are taking most of my income and I'm having to live with my mother. I accept that if anything happens to my ex-spouse, I may have to start child support again in the future.

Expert:  Clare replied 2 years ago.
Hi
It will be a part of the Clean Break Order - and it will have to be very carefully drafted
Clare