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JimLawyer
JimLawyer, Solicitor
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Experience:  Senior Associate Solicitor
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I'm looking to separate from my wife, hopefully amicably but

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i'm looking to separate from my wife, hopefully amicably but should i be worried about my finances should she involve a solicitor
JA: What steps have you taken? Have you filed any papers in family court?
Customer: No, not yet, should i?
JA: Family Court normally sits in a local County and Magistrates' Court. Do you know the location of the court? If not, what county do you live in?
Customer: I live in Dunmow, Essex
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: we have a 3 year old daughter

Hello, this is Jim and welcome to JustAnswer. I will be the lawyer working with you today.
Sorry to hear of the issue. I will set out my written answer shortly.

If she involves a solicitor then they will discuss finances. i.e. whether you have assets and are better off than her. You would need to pay child maintenance, by law. Whether you split any assets depends on a number of factors including how long you have been married. You could apply for a legal separation (but you remain married) or a divorce - this dissolves the marriage - and either way you should have a consent order drawn up so that the finances are dealt with. Otherwise your Wife can claim against you at any point in future even if you divorce. If the finances are disputed, you would be made to disclose evidence of your assets (bank statements, savings accounts, cash equivalent transfer value of your pension, etc). Same for her.

The marriage is not classed as a short one if it is more than 5 years, so a split of assets is likely as opposed to a clean break. There are two orders available: a clean break order (if there are no assets to split) and a consent order.

You can sell the property and that would give you each a fresh start. You can either apply for a judicial separation (and then a financial order), or a divorce (if you want to dissolve the marriage) and again, apply for a financial order. Bear in mind with a legal separation you remain married and as such no pension sharing order is permitted (unlike for divorce). So if your Wife has a pension, you would need to apply for a divorce if you want a share.

If you disagree and cannot come to an agreement, you can ask the local family court to assess a split of the finances and also to deal with the property. She could easily ask to stay in the property as you have a 3 year old - the court's priority will be your daughter to ensure she has a place to live.

Assuming your Wife eventually agrees to a settlement then you can have a consent order drawn up to bind the parties to the agreed terms. The following company can draft the order and they also file it with the court too: Divorce-Online | Quick, Easy & Cheap Online Divorce From £59

The court will consider the factors contained within Section 25 of the Matrimonial Causes Act 1973 when it assesses a financial settlement. Therefore your ages, length of marriage, any children under 18, your earnings and earning potential (same for your Wife), the assets including the former matrimonial home and pensions if applicable, any debts, financial and non-financial contributions to the marriage, your standard of living enjoyed before the marriage breakdown, your financial needs in future and your housing needs, any medical needs and so on.

The starting point is 50% but if there is a disparity in earnings or you have paid more in the way of mortgage/rent, etc, you can ask for more than 50% of the former matrimonial home. It would be worth speaking with her to see if she would agree to any split without having to involve the court. The more that can be agreed without the court's involvement, the better.

If nothing can be agreed then you would need to issue financial remedy proceedings once decree nisi comes through (if you start divorce proceedings), or obtain a decree of judicial separation, so you ask the court to become involved in a financial settlement as well as the divorce.

Before you involve the court with the finances you need to contact a local mediator which is compulsory before you ask the court to intervene in the financial aspect. You can find a local mediator here : https://www.familymediationcouncil.org.uk/find-local-mediator

Assuming mediation fails or your Wife doesn't agree to mediation then you will need to issue financial remedy proceedings and you would need to complete and send two completed copies of Form A (available here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/885814/form-a-eng.pdf) to your local family court and pay a fee of £255 payable to HMCTS. If you are on a low income or have low savings you can ask the court for help with the fee here https://www.gov.uk/get-help-with-court-fees

The court will then list a first appointment and give directions for a financial dispute resolution hearing (FDR) where the judge will give their opinion on a likely settlement - which usually prompts a settlement at this stage. The court will ensure the parties make full and frank disclosure of their assets and liabilities to ensure the financial positions of you both are known and to allow the court to make a settlement decision. If the case does not settle, further directions will be given and a final hearing may take place if neither of you can agree to settlement terms.

I hope this helps and answers the question - my goal is to ensure you are happy with the answer and have the information you need. If you have any follow up questions then please let me know. I will reply as soon as I can to help with any further queries.

Many thanks,
Jim

Please let me know if the answer helped or if you need me to cover anything else?. I am happy to clarify the answer or if you have any follow up questions. If so, I’d be grateful if you would let me know. I am free most days, including weekends, so feel free to ask me anything you are unsure of.

Best wishes,

Jim

Customer: replied 7 days ago.
Thanks Jim, a lot to take in and just want the best for everyone involved. I’m currently paying for everything in terms of the house and bills and would like to sell the house and split it 50/50 is this reasonable enough?

It'd depend on your Wife's finances and her housing needs / financial needs, and yours too. 50/50 is just the default position for the court. It can adjust this up or down depending on who is financially better off. You can certainly suggest 50/50 to her though. If that sits well with you.

Customer: replied 7 days ago.
Would it be better to let you know the basic financials so that you can determine if I have a case or not or in case she decides to involve a solicitor?

I can give an estimation based on that though bear in mind it would just be that as I would need to see a lot of information to know what a likely outcome would be.

Customer: replied 7 days ago.
Ok, My monthly income would be 4K in with 2.5k out. Mortgage is paid entirely by me but in both names!
I have around 20k debt
My wife = 2k in and 0.5k out
Mortgage is 1.1k per month coming up to end of 5 year fixed term, house worth circa £430k

Thanks, ***** ***** money is £1.5K after bills, per month. Hers is the same, but you have a child too.
You pay more per month with the mortgage. She will want a share of the house. I am not sure how long you are married nor your ages or if she has any earning potential - childcare costs will come in to it if she plans a return to work (unless she has done so already). If she can't re-house herself and you have no other assets then she may ask to stay in the home until your daughter reaches the age of 18 after which the house can be sold off and a split of equity given to each of you.
As I say, there are lots of considerations under the Matrimonial Causes Act - it's not as simple as saying you each have 50/50

The debt - not sure if she benefited from the money and whether it was taken out during your time together. If so then you can suggest liability for the debt is shared. This will help with negotiations.

I guess the issue is how amicable things are, whether you are on speaking terms, whether you can agree to sort this without lawyers (to keep costs down), etc.

Bear in mind if she employs a solicitor, they will start off very high in terms of a proposed settlement (e.g. she gets 100% of the house, you keep the debt, you pay child maintenance, you pay her monthly maintenance to help support her financially, etc). The longer this goes on, assuming she uses a lawyer, the more expensive it will be for her. Costs can spiral if you use lawyers.

I would say the way forwards would be to see if she is amenable to sharing everything 50/50 but as I say, I don't know how long you're married / how long you lived together before marriage, if she has any assets of her own - will she inherit soon and will you, etc.

JimLawyer and 2 other Law Specialists are ready to help you
Customer: replied 7 days ago.
Ok, thanks, you’ve been really helpful!

No problem at all, thanks, ***** ***** good evening

Customer: replied 7 days ago.
Hi Jim, having discussed options with my wife. She knows she is better off staying in the family home until our daughter is 18 and that she will contribute 50% towards the mortgage. How do I manage this situation, do I have to draw up an agreement through solicitors!?

You can have a separation agreement drawn up - ideally you should take legal advice on the terms so it is more likely to be accepted if you end up in the family court with a dispute over finances in the future. You can tailor and download a copy here : http://www.lawdepot.co.uk
Or use this company to both draw one up and give you advice on the terms : http://www.divorce-online.co.uk

Customer: replied 7 days ago.
Thanks

My pleasure