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Clean Break Achievable?

Posted by Unknown83 
Clean Break Achievable?
March 16, 2022 09:38PM
Relevant facts:

Husband aged 40, earning £87k p.a. plus bonus of £5-10k p.a.
Wife aged 39, recently graduated and earning £15k p.a. but capacity to work more hours as children are all in school. Earning capacity closer to £25k and can rise with experience.

Length of marriage: 11 years (4 years cohabiting prior)

Children: 3 (all girls, ages 10, 8 and 6)

Equity in Home: £100k approx (£390k value, £290k mortgage)
Pension: Defined contribution, balance showing of £160k
Other assets (e.g. cars, home contents): £40k approx
Short term debt (against cars): £13k

Childcare arrangements: With husband 5 days and wife 9 days out of every 14. Holidays shared equally.

Child maintenance calculator indicates £800 should be paid from husband to wife.


As the husband, please can you advise me what my prospects are at achieving a clean break divorce? My two areas of concern are:

1) Spousal maintenance. After child maintenance is paid my wife will have an income of around £2.8k without spousal maintenance and the prospect of earning more over time. My income will be £3.8k after child maintenance is paid but I also have to spend £600 per month on commuting for work (I'm not sure how relevant that is). My biggest concern is that she gets either spousal maintenance or global maintenance that I have to keep paying after the youngest turns 18 (she is the sort of person who will happily take a less stressful job if she can fall back on income provided by someone else; she was quite happy for me to do all of the hard yards before children whilst doing stress free, low paid work herself).

2) Mesher Order. I don't mind so much agreeing a Mesher Order for 3-4 years but my concern is that I could end up waiting until my youngest is 21 which is still 15 years away and I would have to rent during that time because I could not lend enough if I was still on the mortgage of the FMH.

I am wondering whether the following would be legally acceptable:

1) Mesher Order but on a smaller home (3 bed houses can be bought in the local area for about £120k less) and with an extra trigger that forces a sale after four years if she cannot get me off the mortgage (plus the cohabiting trigger). Equity split of 80:20 on sale;

2) No spousal maintenance (wife must maximise earning capacity and cannot prove a need. Also, as she would be entitled to Universal Credit and would lose it £ for £ on spousal maintenance received I would have to pay £750 pounds before she saw any benefit, by which time my income after child maintenance and commuting would be lower than hers).

3) Pensions split 70:30 in my favour to offset the equity split in her favour;

4) Sell cars to clear debt, split what's left 50/50.

5) Clean break.
Re: Clean Break Achievable?
March 17, 2022 10:47AM
>>I am wondering whether the following would be legally acceptable:

It would be legally acceptable if you were both agreed upon it but if you were not agreed and a court had to decide that outcome would be unlikely. It would be unlikely primarily (although not only) because I doubt that a court would think the disruption and transaction costs would be worth it to sell the existing home to move to somewhere cheaper.
Re: Clean Break Achievable?
March 17, 2022 01:56PM
Thanks David. All other things being equal, would a court be likely to make a decision close to this with the existing family home rather than a smaller one?

In terms of probability, in my case how high a likelihood do you think there is of:

1) A Mesher Order until youngest is 18; and
2) Spousal maintenance of any amount (substantive or nominal)?
Re: Clean Break Achievable?
March 17, 2022 02:20PM
>>In terms of probability, in my case how high a likelihood do you think there is of:

1) A Mesher Order until youngest is 18; and<<

A very high probability.

>>2) Spousal maintenance of any amount (substantive or nominal)?<<

A high probability. There are three young children and your earnings greatly exceed those of your wife. Bearing in mind that the equity is only £100K and that you are contemplating dividing that 80/20 in your wife's favour you might be better off offering her 100% in return for a clean break.
Re: Clean Break Achievable?
March 17, 2022 04:55PM
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Edited 1 time(s). Last edit at 03/18/2022 11:15AM by Unknown83.
Re: Clean Break Achievable?
March 17, 2022 05:35PM
[Deleted as Outing]



Edited 1 time(s). Last edit at 03/18/2022 11:15AM by Unknown83.
Re: Clean Break Achievable?
March 18, 2022 11:53AM
Thanks for the honest replies David, it certainly sounds like I will have to give up a lot to have any hope of a clean break! I did some analysis on the family finances last night and I had some follow up questions on the Mesher Order and Spousal Maintenance.

1) Mesher Order

My reading of the Guidance on "Financial Needs" on Divorce produced by the Family Justice Council is that where resources are modest the children’s need for a home with their primary carer may predominate but, if possible, the court will strive to stretch resources to provide a home for children with each of their parents and that the court will consider the detrimental impact of requiring one party to remain on the mortgage of the other’s home for an indefinite period. There is also an emphasis that the needs of both parties will be considered.

If she is allowed to stay in the FMH for 15 years then I will be forced to rent for 15 years (and rent something unsuitable for the five days out of fourteen the children are with me as a 3 bedroom home would not be affordable). If on the other hand she downsized to a more modest three bedroom home sufficient for her needs the mortgage would drop from £290k to £160k, taking into account transaction costs. With her income, child maintenance and benefits some mortgage lenders would offer her a mortgage of £140k. My portion of the equity could bridge the gap.

Would it be fair to argue that because this is achievable she should:

1) Downsize with a mortgage solely in her name;
2) Have use of my capital until the youngest is 18 but I would have a fixed charge of 10% of the property.

By doing this, I would be able to save up a deposit separately over 2-3 years and then use my own mortgage capacity.

Provided I can demonstrate this, surely the court would fall foul of the guidance by insisting on a Mesher Order that over houses my STBXW and forces me to stay on her mortgage?

2) Spousal Maintenance

I understand this is needs based albeit generously interpreted and a number of factors militate against my STBXW, particularly that she is young enough to build her own career and has recently finished a period of retraining which clearly demonstrates intent to work. There is no compensation principle though because her low income today has very little to do with "hard decisions" made during the marriage. She was a low earner with few qualifications entering the marriage and will exit the marriage as a graduate whose ex-partner has the children for half of school holidays and five days in every fourteen. All of the children are school age and she will also be entitled to universal credit for childcare so it could easily be argued that she can work for 30 hours a week (and more when the children get older because I work from home most of the time).

She currently earns £14 an hour so her earning capacity is around £22k and she would still be eligible for £5k in universal credit on top of the amount for childcare and a further £2.5k in child benefit. This would give her a monthly income of £2.2k before receiving £800 in child maintenance from me. Also factor in receiving an extra £55k in home equity than me and that works out as an additional £380 a month until the youngest reaches 18 so her monthly income plus excess assets combines to a total of £3.4k.

In contrast, after paying for a commute and child maintenance I would have a net of £3.2k and I'd still have to pay a mortgage. So I'm not 100% certain why I would have to also agree to spousal maintenance, especially as she would enjoy an income on her own (and ignoring the extra assets) of only £1k less than we enjoyed as a couple after considering my commute?
Re: Clean Break Achievable?
March 19, 2022 12:01PM
I think you pay too much attention to guidance by the Family Justice Council. It is just that. Courts do not slavishly follow guidance. They use their own judgement. Also, you make the classic mistake of not being objective and reading any guidance on the basis that it must result in some particular outcome for you. Courts have to balance competing needs.

What you ignore in respect of spousal maintenance is that your wife has the care of three dependent children and she earns much less than you. That is a circumstance under which a court would consider at least nominal maintenance in favour of the wife until such time as the children ceased to be dependent.

On the subject of downsizing there is a limited amount of equity here. I am not persuaded that a court would think the transaction costs and disruption to the children should count for less than the benefit to you.
Re: Clean Break Achievable?
March 19, 2022 05:32PM
This is quite different to what I expected! I was expecting the asset split to be tilted in her favour as the weaker financial party and for the children's needs to come first but this seems so one sided that my needs don't even come into the equation.

The Mesher Order problem I can understand to an extent because provided I can afford to rent something similar for the 35% of the time the children are with me and I get a fair share of the equity when the youngest turns 18 (or earlier as I will at a minimum insist on all the usual triggers being in place so I don't end up housing another adult) then there will be a fairness to it in the end.

The spousal maintenance though seems absurd on my income. She earns £1.1k a month, is entitled to another £950 in benefits, will get £800 in child maintenance from me and is entitled to child care such that she could easily earn another £400 net a month. On top of that she would have a huge capital advantage and if she gets the Mesher as well she would have cheaper housing than me too. If she get SM such that it made a difference to her income I would have to pay her around £850 and on top of CM and commuting I would only be left with half of my net salary. By all means they can order that but surely they realise I'd be emailing my resignation during the final hearing? Why on earth would I carry on working 60 hour weeks with 5am starts if I took home the same money as someone on £35k gross? Especially if said job meant I got a lot less time with my children than my ex wife and was getting punished financially for making that sacrifice?



Edited 1 time(s). Last edit at 03/19/2022 05:33PM by Unknown83.
Re: Clean Break Achievable?
March 19, 2022 06:09PM
It is all very well arguing but:-

1. You earn £87K plus £5 to 10K bonus.
2. Your wife earns £15K. That is you earn six times as much as your wife.
3. There are three dependent children aged 10, 8 and 6. That is young dependent children.
4. Your wife will be the primary carer of those children and there is absolutely no way of predicting the future and in particular your wife's financial circumstances while the children are still dependent.
5. The above indicates very clearly that there should at least be a nominal spousal periodical payments order while the children are still dependent.

>>By all means they can order that but surely they realise I'd be emailing my resignation during the final hearing?

You could do that but you can be sure that any court would say that the person who should bear the consequences of that should be you and not your wife and children.
Re: Clean Break Achievable?
March 19, 2022 06:39PM
Sorry, I didn't read your post properly. I see you mention nominal maintenance which would be, what, 5p a year? Provided it was an non extendable term I could probably live with that as I understand it is very, very hard to persuade a court to make it substantive and it would be on her to apply to court to increase it rather than on me to apply to decrease it. My big worry though is that she's quite work avoidant (even before children she was constantly quitting jobs) and I don't want to be used as the insurer of last resort after the youngest turns 18. I think at some point fairness should demand people who get out of bed in the morning are going to be better off than those who don't, even if those two people were once married!
Re: Clean Break Achievable?
March 19, 2022 06:43PM
The courts of course can argue what they want. I suspect though that a reasonable case could be argued that I should be allowed to reduce my hours to provide more childcare and to allow my ex wife to work more hours herself.

Do remember she has been a full time student for the last three years. She has not been a SAHM and certainly hasn't been doing much more childcare than me for the past three years so I'm still unclear why the 210 days the children are to be with her demand a house bigger than necessary and an income the equivalent of £50k gross whilst the 150 days they are with me don't matter.
Re: Clean Break Achievable?
March 19, 2022 06:56PM
Sorry, one other question. Surely income multiples aren't a very useful measure? I could certainly see the case for SM if I earned 6 times as much because I earned £180k and she earned £30k. I certainly couldn't see the argument if she earned £5k and I earned £30k.

What surely matters is the simple question of what was the standard of living before and can it be maintained? That is surely what need means? So if my STBXW earns £1.1k net a month that she has only recently begun earning since graduating, can claim UC of £750 a month, gets £800 CM and £210 a month in child benefit she's got an income of £2,860. I know - because I do the family budget - that this is more than we live on already. My salary only very recently increased because of a move to a commuting job and most of it is spent on commuting.

So, my layman's understanding is that even if a case for SM could be made (and I'm still not convinced I earn enough to be considered capable of paying it, or certainly not paying enough to make her better off as UC will fall £ for £) she could not prove a quantum over and above what she already gets as income.

And on top of all of that of course will be the asset split in her favour to the tune of £55k. I guess I could insist on 50/50 if she wants SM. I might not get it but I may as well burn through the assets in legal fees if she's going to get them all anyway.
Re: Clean Break Achievable?
March 19, 2022 09:56PM
I've been considering what you've been saying at length and I'm afraid whilst I cannot fault you on your knowledge of the law I'm not sure your range of possibilities would meet a basic test of fairness. If I received an outcome on the extreme end (i.e. a Mesher Order until youngest is 21 and substantive spousal maintenance that at a minimum would have to be £850) then by the time the youngest is 21 my STBXW will be significantly richer than me in a way that I could never catch her up before retirement. I understand that a good outcome is one where both parties get a little less than they wanted whereas this would basically be a case of my STBXW taking me to the cleaners.

She would get an income comparative to what we are living on now after the cost of commuting, use of a house bigger than she needed for the next 15 years and probably most of the equity after that and an income stream from me on top of a very generous child maintenance payment that already exceeds what we spend on the children. She would enjoy all this whilst only working 20 hours a week and continuing with her "bare minimum" parenting that involves baking tray meals and significant amounts of lazing around on the sofa (although I do wonder how she will cope when I'm not there to do the laundry, vacuuming etc. anymore!)

I on the other hand would be shut out of home ownership so long that I would probably rent for the rest of my life; after commuting and paying her I would be left with less than half of my net income to live on and suffer a significant drop in my standard of living; I would struggle to have a relationship with my children because I wouldn't be able to afford a home big enough to accommodate them so they won't want to come and stay with me and I would be expected to work in a job I cannot stand that involves a long and expensive commute not for my own benefit but for hers. And if I dare exercise my freedom and seek a job with less stress and better hours for childcare like she can enjoy, the court will come down on me like a ton of bricks.

Surely it is fair and reasonable for a divorcing breadwinner to be allowed to reassess their own life? Surely I'm allowed to downsize my career to work locally and have more time for the children? Or is the court's expectation that my only role is to provide a meal ticket for someone else?
Re: Clean Break Achievable?
March 20, 2022 12:10PM
I see no point in arguing with you. I have given you my opinion and the reasons for it. You and your wife could, of course, agree an outcome and, provided it was broadly reasonable within fairly broad parameters, a court would approve that outcome. Only if you could not agree and one of you asked a court to decide would a court have to do that.
Re: Clean Break Achievable?
March 20, 2022 12:53PM
Sorry Terry, I overreacted to bad news but I still find the outcome a little absurd. Take nominal maintenance for example. She can get £750 UC (not including childcare) today. A court ordering me to hand over £800 to make her £50 better off seems silly enough (not least because of the harm it would do to the children's standard of living when with me for little benefit to her). I suspect my wife would agree on that point.

Nominal maintenance seems all the more silly and other solicitors have advised the tide has turned against it for the same reason. If for example she lost her job her UC would increase to £1k. It seems unlikely she would succeed in a variance for me to pay her SM of in excess of £1k out of the blue because I simply couldn't afford to and could demonstrate that. Rent plus commute will be £2k alone leaving me with barely anything to live on if she came along demanding that. If she or one of the children became disabled her UC would be even higher, something like £1.4k. At that point I wouldn't be left with enough to have a roof over my head and the money to get to work. Again, a court would have to be daft to award an amount that makes it impossible for someone to even get to work.

I can certainly see where you are coming from over a 20 year view of case outcomes. Less so since the welfare reforms. All the cases that support outcomes like the one you suggest seem to have occurred before UC was lost £ for £ from SM received.
Re: Clean Break Achievable?
March 20, 2022 03:47PM
>>All the cases that support outcomes like the one you suggest seem to have occurred before UC was lost £ for £ from SM received.

I think you will find that apart from courts in the North of England (which do indeed seem to try to prioritise welfare benefits) courts in the rest of the country generally take the view that it is for the former spouse rather than the taxpayer to support ex wife and children. You emphasise your wife's alleged earning capacity (despite the historical evidence that she has never done that during the course of your marriage) over the very real fact that you earn six times as much as she does.
Re: Clean Break Achievable?
March 20, 2022 04:29PM
Interesting. Sounds like I can insist on 50/50 asset split then (or spend all the assets on legal fees trying, if she's going to get them all anyway) if she's going to get SM regardless of my generosity with the assets.
Re: Clean Break Achievable?
March 21, 2022 02:54PM
David Terry Wrote:
-------------------------------------------------------
> >>All the cases that support outcomes like the one
> you suggest seem to have occurred before UC was
> lost £ for £ from SM received.
>
> I think you will find that apart from courts in
> the North of England (which do indeed seem to try
> to prioritise welfare benefits) courts in the rest
> of the country generally take the view that it is
> for the former spouse rather than the taxpayer to
> support ex wife and children. You emphasise your
> wife's alleged earning capacity (despite the
> historical evidence that she has never done that
> during the course of your marriage) over the very
> real fact that you earn six times as much as she
> does.

I did some research on this as I didn't really like your snide remarks either about me not providing for my wife (£55k more in assets than me) or my children (£800 a month rising with my salary) for the next 12 years or that insinuated that the north was some kind of benefits capital.

The reason - for your information - that the North is more likely to not include spousal maintenance is because of the levels of wealth and the cost of living in this part of the country. Spousal maintenance in a case that mirrored one in the South would absolutely apply. The reason it is not used as often is because child maintenance is normally enough to house the resident parent adequately. Judges in the south will take exactly the same approach and luckily whereas you operate in Ashford in Kent which has a much higher cost of living than my town it is understandable that you might look at a house price such as mine and an income such as mine and think Mesher Orders and spousal maintenance are appropriate. The fact however is that it is possible to buy a suitable house for rather less in this part of the south than in any part of Kent. The cost of living is lower, £2.8k is more than enough to live on and spousal maintenance is totally inappropriate in my situation. Or so says the solicitor I spoke to this morning.

I also note that whereas the solicitor I spoke to is in the Legal 500 and a member of Resolution, you are neither.

Good day.
Re: Clean Break Achievable?
March 22, 2022 11:42AM
Unknown83 Wrote:
-
>
> I also note that whereas the solicitor I spoke to
> is in the Legal 500 and a member of Resolution,
> you are neither.
>
> Good day.

confused smiley confused smiley confused smiley


This kind of argumentative behaviour and point scoring is how my ex husband ran up a huge solicitors bill for a very straight forward divorce. You obviously know better so why are you keeping coming back to argue?
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