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ukfamilysolicitor
ukfamilysolicitor, Family Solicitor
Category: Family Law
Satisfied Customers: 1441
Experience:  Divorce, Finances, Children, Domestic Violence, Care Proceedings
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We have been married for 7 years and have 2 children, 6 and

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We have been married for 7 years and have 2 children, 6 and 1. My wife works full time and i work part time. Generally i look after the children more from 8 months ago, but my wife receives child benefit. Our relationship has soured and separation may be in the offing. Who would be made to leave the home either by court order or if police were involved and why..thank you

Hello

Welcome to Just Answer

I am a Solicitor and will assist you.

Please may I ask:

- is the house rented or owned?

- if owned, how much equity is there?

- what are the other assets for both of you including pensions?

- yearly income for both of you?

- is divorce contemplated?

- will you continue to be the main carer for your children?

kind regards

Caroline

Customer: replied 4 months ago.
house owned. equity 100k. my pension 50k. her pension 100k. my income 14000- self employed and i am currently putting the whole earning into my pension as i previously contributed very little. her income gross 58000. other assets.. i have 300k. she has 100k and a property abroad.. equity 50k . divorce is contemplated and in which time she may attempt to be the main carer but i will work part time from home..

Hello

Thank you for your response.

Please accept my apologies for my delay in responding to you.

Please may I also ask:

- what would the sale value of the house be?

- what is the price of avergae 2/3 bed in your area?

kind regards

Caroline

Customer: replied 4 months ago.
Sale value 360 and av value 2/3 bed 250k
Customer: replied 4 months ago.
i am still awaiting a response thank you
Customer: replied 4 months ago.
i will provide a full background. i am 44 and she is 37. i work 2 days as a freelance pharmacist. i trade financial spread bets which is gambling and i make approx 10k per annum. i am at home tuesdays,thursdays and every alternate fri-sun. i look after the kids on those days. the oldder child goes to school and the toddler goes to a child minder mon, tues and wednesday. she looks after kids every alternate fri-sun, and gets them ready on tue and wed. my total net income including my gambling wins is 25k; her gross is 58k with regular bonus of 2k a year. i have some medical issues, high cholesterol and mild depression. my pharmacy job and gambling are both uncertain. no contracts or certainty in terms of employment or earnings. we maintain separate finances with 2 joint accounts which we contribute to 50:50 and all the joint expenses are paid from that. i have a 14 yr old from a previous marriage and he stays over for 1 night every other weekend. during our marriage, she only took 2 years off to have children; otherwise she has been working and furthering her career. i view of all this, my questions are as follows: 1. could i get custody of the kids; if not at least joint custody??; 2. how are the finances likely to b split up; 3.could i get ongoing maintenance payments from her given my age, ill health and lower and unpredictable income

Hello

Thank you for your responses, which I have now considered. I do apologise that I was not available over the weekend.

I will prepare an answer for you now although this will take me a little while to type. Please check back in 15 minues.

kind regards

Caroline

Hello

Thank you for your response.

Please do accept my sincere apologies for not being able to respond to you sooner. I was having a few IT problems!

I think it is appropriate to give you an overview of the matrimonial finances and how the court deals with the same.

In relation to the matrimonial finances - the correct way of dealing with the same is by making a claim which can only be done once divorce proceedings have been issued.

The matrimonial finances includes all of the assets and liabilities for both of you. You will both be under a duty of full disclosure to provide full details of all assets and liabilities for both of you to each other.

With a longer marriage, then the starting point for the division of all assets is equality.

The court considers the following criteria when deciding whether to depart from equality:

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;The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;The standard of living enjoyed by the family before the breakdown of the marriage;The age of each party to the marriage and the duration of the marriage;Any physical or mental disability of either of the parties to the marriage;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;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;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 (e.g. a right to your husband’s pensions).

From what you have said as your children are minors and if you were to be the main carer for your children and also given that your income is less then you need to be seeking a larger share of the assets - around 10 - 20% more.

In relation to the house - there is not sufficent equity for the house to be sold and the equity to be split and you both rehoused. A court would order that the house should not be sold and the equity split until your youngest reaches 18.

In relation to who stays in the house - this is really going to depend on whom is going to be the main carer for your children. You do however have £300k which would be sufficent to buy another property so the childrens housing needs could be met at properties. A court will decide if you both cant agree but there does appear sufficent funds to be able for you both to meet the childrens housing needs.

In relation to income:

- in relation to child maintenance - if there was a genuine shared care arrangement between you then maintenance would not be payabe under the child maintenance service rules. If one of you had the children more then the other then maintenance would be payable and there is a calculator on the CMS website which will give you an idea of liability for either of you.

You can also seek spousal maintenance on divorce as your wifes income is higher. There is no set rule but a court will want to make sure that you have enough to meet the childrens needs.

You need to consider referring to family mediation. This is a prerequisite before you can apply to court. Google family mediation in your area and give them a call to self refer.

Mediation will try and help you both through full disclosure of both your financial positions and discussions about division. You can discuss providing for the children at mediation.

If agreement can be reached at mediation then a consent order should be submitted to the court when applying for decree absolsute in divorce proceedings to finalise matters.

If agreement cannot be reached at mediation then the mediator will sign the form that you need to apply to court.

If divorce is not yet contemplated then you could consider a separation agreement. Mediation could again help you agree the terms for this. You need to be aware that such separation agreements are not legally binding on a future family court Judge but they can and do order in line with what was agreed if they considered that full disclosure had taken place and what was agreed was fair.

In relation to the children - it is the position of the courts that children are entitled to a really good relationship with both of thier parents and this should prevail as long as there are no child protection reasons as to why this cannot happen. The courts expect parents to be able to agree arrangements without the need for court intervention but the court will make a child arrangements order if the parents cannot agree. Courts do not consider one parent as being more important than the other its all about meeting the childrens needs and the court will make what they consider as ebing the best order to meet the childrens needs. Shared care arrangements are made if this will meet the childrens needs. As with the matrimonial finances - you cannot make an application to court in respect of children matters unless you attempt mediation first.

Please do let me know if I can help you further

kind regards

Caroline

Please kindly remember to rate positively by clicking on the stars, so that credit is received for helping you today

Customer: replied 4 months ago.
thank you very much for the info.. i do have a few more queries:
1. i have inherited 100k worth of property abroad from my dad. thats on top of the 300k i already have. is the inherited property added to the family assets to be divided
2. will my mild depression have any consequence to having custody of the children
3. what constitutes "primary carer" as currently its almost 50:50.. on the weekends my wife looks after the children, i am away for work and so she is responsible for them night and day
4. we are currently considering moving into a larger house (£525k). our mortgage will be 425k. if we do this and i have to move out; is it likely i will be asked to continue paying towards the mortgage if she claims she is unable to afford it on her own. if we can get joint custody, would i be allowed to use the assets to buy another house of the same value, given that the children must have same living conditions
5.from you experience, are courts reluctant to offer joint custody as it can cause the children instability and inconvenience.
thank you

Hello

Thank you for your response.

Please do accept my apologies for my delay in responding to you.

In relation to your queries:

1) it has to be disclosed. You can argue that inheritance should not be included. In reality a family court Judge has a really wide discretion and can choose to set aside or not. The focus of the Judge will be meeting needs in particular housing needs and if this can be done through the other assets then inheritance could be 'ring fenced' but this often means a Judge will award the other spouse a larger share of the other assests.

2) no it should not. As long as you are capable of meeting the childrens needs and there are no child protection concerns. You need to keep taking your medication and engaging with your GP/services as needed as thats all a court would ask of you.

3) primaray carer really is the person is providing more care. Courts can and do make shared care orders if such an order would meet the childs needs.

4) probably not the best idea if things are uncertain. Its a case of what the court thinks its appropriate. A court may think the new house is surplus to requirements and that you should both downsize.

5) no - courts in my area actually really favour shared care orders if the childrens needs can be met in this way.

kind regards

Caroline

Positive feedback is gratefully received

Hello

I note that this question remains unrated. Your feedback is important to me.

I would be grateful if you could kindly rate my answer by using the stars.

If I can assist you any further then please do not hesitate to ask. Your question will remain open when you leave positive feedback and I will be able to answer your follow up questions for free for you.

kindest regards

Caroline

Customer: replied 4 months ago.
I do apologise for the delay and i thank you for the information. I just have a few more queries and i should be done:
1. I brought 150k more into the marriage and i have invested and saved my money whilst she has refused to invest and also has been spending considerably more - shoes total 4k; bags total 4k; jewellery 12k. Is any of this likely to be considered in the awards. Generally we maintain separate finances with two joint bank accounts holding money for collective expenses only.
2. I am considering giving up pharmacy and surrendering my licence and want to pursue stock trading, buy to let investing and gambling full time as a profession from home.Although earnings irratic; on average if it is 35k a year; could the courts compel me to get a regular job as a pharmacist ( average salary for a pharmacist is 35k). Also in order to stock trade and gamble, i need capital of 50k. Would i be allowed to keep that on top of the equal distribution.
3. Please confirm if i understand correctly; that is, even if she was able to get full custody of the children, i would still be eligible for a large sum close to 50%
Kindest regards

Hello

Thank you for your response.

1) Im sorry it wont. The courts dont consider contribution in this way when you are married.

2) no the courts could not make you take up any employment you did not want too. There should be sufficent assest for you to have at least £50k but this wont be additional to the normal division process.

3) if your ex gets full time care fo the children - shes likely to seek a larger share of the assets - somewhere around 10 - 20% more.

kindest regards

Caroline

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