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Stuart J
Stuart J, Solicitor
Category: Family Law
Satisfied Customers: 23706
Experience:  Senior Partner at Berkson Wallace
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Financial Remedy on Divorce, FDR coming up. England. Is it

Customer Question

Financial Remedy on Divorce, FDR coming up. England.Is it worth getting a valuation of the house done by a surveyor expert witness?Only asset is house. If it sells for valuation provided by the estate agent and marital debts are cleared and wife takes 60%, it will give her maybe £50k as funds towards a house deposit for a similar-sized property in the area, once her mortgage capacity is taken into account. If I get the house valued by a surveyor, it may increase the valuation slightly, giving a higher expected outcome for my wife, by maybe £10k under the same scenario (she takes 605 after debts cleared).Question is:
Should I bother spending money on getting a surveyor expert witness to undertake a valuation? Is the court bothered whether she'd get £50k or £60k if either scenario would allow her to rehome and 'move on'?Her position is that she should keep the house and i keep the debt. If the house is valued lower, it may be possible for her to cover the mortgage but I would still be left with the debt and no way of rehoming or 'moving on'. She would then keep the equity which wouldn't be equitable.
Submitted: 14 days ago.
Category: Family Law
Expert:  Stuart J replied 14 days ago.

Hello. Thank you for the question. It is my pleasure to assist you with this today.

Please bear with me as I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Has the house been seen by 3 estate agents to give you a median?

If she wants to keep house is she able to remortgage and also pay you out?

are there any children under 18?

Customer: replied 14 days ago.
Children under 18 - yes - but there will be a shared access arrangement in future (60/40) so we have similar needs (ie both need homes with bedrooms for children).Both have very similar incomes and borrowing capacity. If you take the child maintenance that i pay, her income is considerably higher than mine, so her borrowing capacity will be higher, i presume.I think she can only buy me out if she gets a guarantor for the mortgage. I'm not she can do this. If she could re-mortgage to buy me out, her borrowing would have to be 100% higher than her sole borrowing capacity - i doubt she could afford this even with a guarantor.2 estate agents have provide the same price, which is the same price as house was on market for 2 years ago when we bought it. I would have thought that house price rises (Halifax/Nationwide indices), 5%-deposit, government-backed mortgages, national house shortage and falling mortgage interest rates would mean that, over the last 2 years, the value should have gone up by now.You answered a previous question of mine, in a similar thread and you seemed pessimistic about dividing the only asset (being the house) if she has children living with her. But my view is that, even if she got the house, and didn't buy me out, she can't afford the mortgage and I'm left holding all the marital debt (as it's in my name) and i'm not able to move on or rehome myself. This would be inequitable.On my calculations, even if the house sold for current value provided by estate agents, and the marital debt, mortgage etc was cleared, and then she bought a car and then took 60% of the proceeds, she'd have enough for a 12-15% deposit on a very-similar-sized house in the same area (same number of rooms/bedrooms) but with a smaller garden.
Expert:  Stuart J replied 14 days ago.

I would get three valuations and see what comes up on Zoopla for equivalents.  Then invite the court to take the average of whatever you have.

I wouldn’t spend a whole load of money on valuations.

I think that’s a really good position for her to be in, she gets the house you get the debts.  Bargain!  I think not.

The problem for you is that if you have children under 18.

The potential problem you have here is that you have dependent children.

Parents are under a duty to provide a home for dependent children until they reach 18 and therefore, unless there is a lot of equity in the property, sufficient to release enough to the non-resident parent and provide a home for the resident parent and the children until the youngest reaches 18, it’s unlikely that the non-resident parent is going to be able to force a sale of the property.

The only good news is that the party that remains in the property is responsible for the mortgage and the bills.

The situation would be completely different if there were no children and it would be infinitely possible for the person wishing to sell to force a sale of the property if necessary under section 14 of the Trusts of Land Appointment of Trustees Act by applying for an “order for sale”.

Dependent children, under 18, change all that.

If the children live with her, and she is classed as the resident parent.

You would be liable to pay child maintenance at the CMS rates: which are here

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/672432/how-we-work-out-child-maintenance.pdf

Do read the whole document but the basic rates start at the top of page 18.

Child maintenance is reduced by 1/7th for each 52 nights that the non-resident parent has the children.

It is based purely upon income, not capital the fact that her income is higher than yours is not relevant.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards

Customer: replied 14 days ago.
I understand the whole child maintenance calculations, liabilities etc and I am already paying a calculated rate. That's not in question.I'm interested in your point of view as regards ***** ***** "resident parent" and want to challenge that to see if my argument has any merit. You position/view is likely to be one that i come up against in court and so I want to test my position and argument against it, and that is:We both have a duty to provide a home for our children, not just her. Because the children "live" with her, doesn't mean that they only stay there. For some 150 nights of the year, they will be staying with me. My position, to the court, is thus: Where will the children be sleeping when staying with me? Surely i have to provide them a home, bedrooms, beds, living space, security etc. just as their mother will. We therefore both have the same needs in terms of providing for our children as each other. Just because they sleep at her house for 210 nights a year and only 150 at mine, doesn't mean that, for those 150 nights, they have to "make do" with inadequate accommodation (as a result of me not being able to rehome properly).I could understand if the children never stayed with me, there would be no need for me to provide bedrooms, accommodation etc for them and (conceivably, albeit inequitably) I could make do with a bedsit for myself only. However, that's not the case.In terms of equity - that's the position I've laid out above: if the house were to be sold and marital debts cleared, there would be some £110,000-£120,000 left of the proceeds from the sale. If she took 60% (or even 50%) of this, this would give her enough money to put a 15% deposit down on a very similar-sized house in the same area, given her mortgage borrowing power.Therefore, the position that I want to present to the court is as follows: it isn't just her that needs to accommodate the children, I do too. We therefore have similar housing needs moving forward. I will then present that there is enough equity in the house for it to be sold and both of us buy a similar sized house in the same area with the proceeds allowing us to afford this. My position to the court is that this is an equitable arrangement and caters for the welfare of the children (as it wouldn't subject them to poverty for the 150 nights a year that they would be spending with me).I believe that there would have to be a substantial reason for the court to depart from such an equitable position to allow her to keep the house. Simply stating that the children "live" with her isn't a reason in itself nor does it reflect the reality of the situation.For example, you could have an arrangement where the children "live" with their mother but spend 5 nights a week (>70%) of their time staying at their father's house. So the concept of "lives with" doesn't have a lot of weight in and of itself.However, if she were to receive the house, as you say, she'd be liable for the mortgage etc. In the event that she isn't able to afford the mortgage, then how can a court order this to be the outcome as it would place her in a financially ruinous position - taking on more than she is able to handle, financially. This would then impact the welfare of the children as puts them at risk.
Expert:  Stuart J replied 14 days ago.

In exactly what you are getting at but unfortunately one parent is always classed as the resident parent.  That’s normally the one who gets the child benefit.  There is no provision to split child benefit.

If residence was genuinely split 50-50, then there is no child maintenance is payable by either party.

Nonetheless, there is still one resident parent for child benefit purposes.

I couldn’t agree more that you both have to provide similar accommodation but if there is only enough money to provide one decent accommodation, then why should it be the resident parent that gets the decent accommodation and the other one live in poverty (exaggerating to prove the point).

So in that case, why shouldn’t both parents living “half decent” accommodation as opposed to one decent and one impoverished?

So that would be a powerful argument to put forward.however you are in the hands of the court as to whether it accept that or not.

Customer: replied 14 days ago.
It's not a question about child benefit nor child maintenance.It's a question of what argument would win the court over in deciding to award the home to the mother, rather than split the proceeds upon sale so that both parents can rehome and meet their respective housing needs as well as both providing for the children.It's not a question of both living "half decent" accommodation and the question about whether there's enough money or not is as described: that a similar sized house can be bought in the same area by both myself and the mother, if, and only if, the current house is sold and proceeds divided.Currently: 3-bed house, floor area 1,750 square foot. If this is sold, then there is enough equity, even at the lower end of the sales valuation, to give my wife, and me, enough money to purchase a 3-bed house with 1,600-1,900 square foot of living space, in a similar area, which is comparable to current. Any change in standard of living is almost negligible in terms of house size.Given this is a viable solution and still provides both parties with similar homes going forward, why would a court think that the alternative is a better solution - in that the ex-wife keeps the house, is unable to afford the mortgage, doesn't buy out the husband of any equity and the husband walks about with £50k of debt before he can even think about saving for a house deposit....? If the court would consider this inequitable scenario over the apparently achievable one of being able to rehome both parties by ordering a sale of the house, I am trying to understand WHY they would consider this and what would convince them of such a decision. So that I can argue against it... especially if the argument i'm presenting here, essentially as a test, isn't going to work.
Expert:  Stuart J replied 14 days ago.

I’m sorry to say that even in these days of equality, the mother tends to take preference if she is loving the children.

The value of reasonable houses in the earlier is a mathematical thing and it would be expected that there would be a substantial element of downsizing.

I would present any argument that you can come up with provided you put forward a structured argument because many people simply present it “it’s not fair” or “she doesn’t need a house that big”without putting it down in realistic and practical terms as you have done.  So to a great extent, you have actually put forward the argument here that you would eventually put to the court.