How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Clare Your Own Question
Clare
Clare, Solicitor
Category: Law
Satisfied Customers: 34106
Experience:  I have been a solicitor in High Street Practice since 1985 with a wide general experience.
13262538
Type Your Law Question Here...
Clare is online now

Removing Residual Maintenance drawn up in a property trust.I

Resolved Question:

Removing Residual Maintenance drawn up in a property trust.
I am checking on whats my best approach to getting spousal maintenance sorted.
BACKGROUND In my divorce settlement in 2008 I had maintenance for my two kids and for my ex. The divorce involved me retaining 40% of the family home that they stayed living in, my share held 'in trust' until she remarried etc (she hasn’t). In honouring this I have had to sell back (ie my ex has bought me out) of my share of the property until in the final settlement last month - she now has full ownership and I have got all my capital out. In doing so we agreed (I accepted) that I pay up the remaining kids maintenance up front. Alls settled amicably with the kids which was the main thing in getting my money. I accept my future obligations to the kids and will contribute to them direct, over and above this settlement, when I have sufficient income to do so (I have been setting up a business venture for the last few years hence the need to raise capital out of the house). In the meantime I have met my basic obligations.
ISSUE - However, there is one outstanding issue – in getting at my money I had to accept the following in the closing amendment to the trust ‘Wife agrees that her own spousal maintenance shall be reduced from the 1 December 2013 to the sum of 10p per annum’. I challenged this but got no change. It was described by her solicitor as - A sort of 'standard' rainy day clause'. I accepted this reluctantly to get the money, leaving my ex with some residual hold over me. Given i) she has her own very successful business set up since we divorced providing very significant income and now owns two properties while ii) I continue to earn no money investing in this new business – I wish to close off this residual ‘potential liability’ in order to free me up to get married to my partner. We are selling up my remaining asset – my flat – to do so.
Q - What is my best route to challenging this 'trust condition' and removing this residual maintenance? I wish to get myself in a position inform my ex of what options open to me with the aim of getting her to simply agree herself WITHOUT recourse to any further legal action to offer to drop this residual maintenance (on basis that this worst case scenario is far from the reality of her financial circumstance) and therefore close off all financial links between us ergo – for me to get married unencumbered. Is this doable between us? I intend to take this action now. If its not amicable - Can you provide advice as to where my legal rights are should I need to use them?
Regards.
John
Submitted: 2 years ago.
Category: 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.
Just two points for clarification.
How old are the children now and why do you feel you cannot get married until this issue is dealt with?
Clare
Customer: replied 2 years ago.

My kids are 19 and 17, and i have paid up front the remianing maintenance due, netting iit off the capital due from the house buy out by my ex, this is covered in the amendment to the property trust..

.

My partner is concerned about having potential liability/ come back from my ex for future maintenance and wants this cleared before we combine our financial resource and get married. I have not earned any money for the last few years and had to sell my interest in the house to survive and meet my maintenance obligations, including my exs, even though she has earned lots of money in the interim. So its emotive aswell as the financial hangover. She wants any financial link with my ex ended, so this residual clause in the trust needs dealing with, so that there is no future comeback on maintenance claims in the future on me - when i start earning serious money from my business, which i plan to do....

Expert:  Clare replied 2 years ago.
Hi
In order to gain an upward variation of the nominal order then your ex would have to show that she remains reliant on you in some way - which given the fact that your children are full grown and she has established a new career after separation is impossible.
It would be very odd to go to court simply to dismiss this residual paragraph especially given your ex's secure financial position
Your new partner has nothing to worry about in any event since your ex would never have a claim on her assets or income.
If your ex will not agree to dismiss this part of the order then you will need to issue an application to vary the order (again)
Please ask if you need further details
Clare
Clare and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Further to our exchange, i would like to subsequently clarify if it is worthwhile taking this any further - having wrote to my ex saying i wanted closure re this residual maintenance a- i have just received this reply (without recourse to legal) -:

'To put your mind to rest, and to clarify the 10p issue...


It is standard practice to leave in a nominal fee by way of a precaution. IF in extreme circumstances I lost the house, became ill, had NO assets or equity, then I could look to you (through the court) for some support. To do that, I would have to present the court with full disclosure of my situation to amend the agreement. Fortunately, given my situation, this is VERY unlikely to happen.

Hope this helps'.

My issue now is this a position that a court would accept if i was to take it any further. In other words is it worth me taking it forward i assume by challenging this clause in the trust under the divorce? to remove this risk / protect myself against her coming after me. Or is there no point in me persuing this , as she says she would have to go back to court herself to prove it, so anything i do in the interim, she still has that right in extremis.... Can you advise what options i have and whether any are worth persuing or if this response in and of itself is a resolution. Thank you, John.
Expert:  Clare replied 2 years ago.
Hi
Frankly it is simply not worth the energy you are currently wasting on this - let alone a court application.
Been if she goes bankrupt tomorrow it is highly unlikely that any claim on you for maintenance would be successful
Clare
Clare and 2 other Law Specialists are ready to help you
Customer: replied 2 years ago.

Hi Clare,

Further to the exchange above re my ex coming back for maintenance thru the residual clause in the property trust, now i have got my money out of the house and the monetary link between us is closed.

This issue is not satisfactorily resolved for my partner who is of the belief that we (through joint ownership of future assets) once we are married, and her own money are at risk from come back for future maintenance from the minute chance that my exs life completely unravels.

Please can you advise on what action could be taken and what the point of it would be.

I had interpreted your opinions as there was no chance of my ex getting maintenance redressed whatever her situation and no point taking it further.

I would like peace of mind here for the both of us.

Please can you be as precise as possible in clarification so i can share with my partner.

Regards,

John

Expert:  Clare replied 2 years ago.
Hi
Your partner is unnecessarily anxious.
There is no risk off her assets and income being claimed by your ex.
In the event that your ex suddenly lost all her assets and was struck down by some malady that left her unable to work the court would still be unlikely to make a maintenance order against you since all your financial links have been severed and your children are adults.
You can make an application to the court to dismiss this if you wish.
It wil cost £245 for the issue fee- then you will have to go through the court prices if you ex does not agree.
It is likely that you will be successful - but frankly the court will wonder why you bothered
Clare
Clare and 2 other Law Specialists are ready to help you