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Harris
Harris, Law Specialist
Category: Law
Satisfied Customers: 2722
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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My husband and I are getting divorced. I recently had cancer

Resolved Question:

My husband and I are getting divorced. I recently had cancer and was awarded the higher rate of the PIP disability, meaning I can claim for more benefits when on my own as husband higher earner. He has sugg st I move out (am the mother) and claim these benefits, etc as this is the only affordable way of living apart. Yet I feel he could too (as I get more because of our three children) and the benefit could free up some money for him to live somewhere. Please advise on rights. There is no money assets and living apart is not doable unless the benefit system is tapped into whilst I've got this pip award. Thanks
Submitted: 1 year ago.
Category: Law
Expert:  Harris replied 1 year ago.

Hi, thank you for your question. Just a bit more information required to fully assist you:

-How old are you both?

-How long have you been married?

-How old are the children?

-Is the home rented or owned? If owned, what is the value and outstanding mortgage?

-What are your respective incomes?

Customer: replied 1 year ago.
I'm 49, he's 52
Married 23 years
Kids 17,14.10
Rented
I've only been able to do part time casual work, so a both £100 a week. Difficult with hospital stuff and I look after kids
He's a lawyer, And earns £125
Thanks
Expert:  Harris replied 1 year ago.

Does he earn £125,000 per year?

Do either of you have pensions, if so what is the value?

Customer: replied 1 year ago.
a year
His 40 mine 30 cetv
Expert:  Harris replied 1 year ago.

Thanks you.

Is the plan for you to be the main carer of the children?

Is the current property suitable to meet the children's needs?

Customer: replied 1 year ago.
to both.
Expert:  Harris replied 1 year ago.

Thank you for confirming. Firstly, if this matter went to court, the court's priority will be for the children's needs to be met and if they are being met in the current property, then the court will consider this the first option to house them. This will therefore mean that the main carer (you) should remain in the property. Given that you will be in receipt of PIP you can also apply for housing benefit to assist with the rent, as well as child benefit and child tax credit.

You will also be able to claim child maintenance (through the child maintenance service) from your husband - the rate will vary from £175 to £392 per week depending on how many nights on average they stay with him a week once he has moved out. Furthermore, if you are still not able to meet your reasonable needs then you can apply for spousal maintenance once divorce petition has been issued - this will cover your reasonable needs which cannot be met from your income and benefits.

Initially this should be attempted through mediation - you can find independent mediators here: http://www.familymediationcouncil.org.uk If a settlement is agreed this can be submitted to court under a consent order (together with a D81 form outlining your respective financial positions).

If mediation does not progress you should then proceed with an application to court under Form A for financial relief.

You will both need to provide each other with full and frank financial and income disclosure, as well as disclosure of your reasonable needs. The Court's starting point is a 50-50 split of all matrimonial assets and ensuring that both your needs are met in relation to both assets and income. The criteria considered is:

1. The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
2. The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
3. The standard of living enjoyed by the family before the breakdown of the marriage;
4. The age of each party to the marriage and the duration of the marriage;
5. Any physical or mental disability of either of the parties to the marriage;
6. The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
7. The conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
8. In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.

If you have any further questions regarding this please let me know. In the meantime if you found this information helpful please provide a positive rating using the stars at the top of this page. I will not be credited for answering your question without a positive rating. Thank you

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