Insecure Job during divorce

I'm hoping to get some advice before accepting a job offer. I currently work in London and earn quite well but my proximity to the Board means I know jobs are not secure. Although my role is not in scope for redundancy this time, the company is poorly run and I fully expect a second wave of redundancies at some point next year.

Obviously losing my job during a divorce would be less than ideal, especially when I earn £100k compared to my ex on £15k (though the legal advice is that she would be expected to work more and that she is not maximising her earning capacity).

To avoid this outcome I have been applying for roles in London but I have not been successful. I got into my role through a career change and a recruitment agent has suggested that employers are baulking at the salary demands for my experience.

I recently looked outside London and have been offered a similar role to what I am doing now but outside London. The salary is 14% lower but it is a work from home role and paying £3.7k less in commuting will partially offset this. The pension contributions will also nearly halve and I will have to contribute to get them.

The role also offers a lot of better experience for my role which will improve my employability and earning potential in the long term. I could realistically be on my London salary within five years but without the commuting costs.

My question is do I have to wait like a sitting duck to get made redundant first (I have only been with my employer for 18 months) to "maximise" my earning capacity even if this leaves me earning nothing for months if I lose my job or would I be okay to accept this opportunity now on the grounds it provides income security and better prospects?

The divorce is somewhat acrimonious and I have had to file for settlement because my ex is asking for spousal maintenance and there is no way I will agree to that based on the legal advice I received. I'm worried what will be made of this move despite the honest intentions.

>>would I be okay to accept this opportunity now on the grounds it provides income security and better prospects?

Provided you can justify the job change no-one expects you to put your life on hold. Do remember that your ex will say that you have deliberately chosen to earn less so as to limit her claims for maintenance. Therefore you must be prepared to justify yourself - preferably with evidence. If you are confident about being able to do that then this is the sort of decision you are entitled to take.

Thanks David, could you give me some sort of indication of what evidence I would need?

The job really is excellent from a career perspective and the salary is amazing for one outside London and 80% working from home. The experience will demonstrably strengthen the stability of my employment.

That said, the net pay is less by around £300 a month and I'm not in the firing line for this round of redundancies so I cannot prove it is due to loss of job (although it would certainly come soon enough the way this place is run). I've tried to find similar cases to no avail to answer the question, could a court insist I get a job offering worse prospects and a long commute in order to earn more in the short term?

If you have a job earning £X and, before the financial issues arising from the divorce are settled, you take a job earning £X - then a court could take the view that your earning capacity is £X and therefore any spousal periodical payments you are ordered to pay should be based on £X. A court will do that if for some reason it dislikes the evidence of the husband and prefers that of the wife. That can happen if, say, in giving evidence the husband sounds a bit of a smart Alec. However, there are no certainties about how a court treats evidence from one spouse rather than the other. If your explanation is plausible and the court does not take a dislike to your evidence (which can happen for all sorts of reasons) then there is no reason why a court should not take your income as £X -. It is just that there is no way of knowing how evidence will come out in court and the impression it will have on a judge.

I once had a case where a husband had lost a great deal of money in gambling. So far as I could see he was genuinely remorseful and it was a one off. The judge agreed and took the assets as they were rather than counting back in to the husband's share what he had lost in gambling. I think he was very lucky that a judge took that view. The point is, a graet deal depends upon the impression a witness makes when giving evidence. The judge obviously thought this husband was sincere and genuine. Had he thought otherwise the outcome could have been different.

You face the same type of situation. You cannot be 100% sure but you are entitled to move on with your life even in the middle of divorce. If you can justify the move then there is nothing necessarily wrong with it but only you can decide. If, of course, your existing employer had served you with a redundancy notice you could produce then that would have made your case for you but life is often not clear cut.

Thanks David, it sounds like there is no right or wrong answer here and the best approach is to minimise risk. An unfair spousal maintenance order but with a job and the funds to fight in further litigation over and over again until she gets the message sounds like a lower risk situation than getting an unfair spousal maintenance order and then to get made redundant and not having the funds to fight it.

Especially considering that my solicitor thinks she is earning beneath her earning capacity (ironically by even more than I would be) my ex-wife might be reluctant to risk going to court anyway. Spousal maintenance is a remote risk at best so I will be accepting the job.

Following on from my question earlier in the year, I accepted the role and things have moved on. However, I've also had to file Form A because my wife is simply not negotiating at all from her position:

- A Mesher Order to stay in the family home for another 11 years;
- I pay her mortgage in full (it will be £1,500 when the rate is fixed again at the end of the year);
- The equity will be divided 70/30 in her favour when the property is sold;
- Global maintenance that equates to the CMS calculation (without reducing as the older children turn 18) plus £300 on top until the youngest is 18;
- Pension split 50/50 when children are 18.

This would equate to £2.8k of my £5.1k salary. Whilst I understand that she will be entitled to some support would I be correct in my suspicion that these demands are somewhat far fetched when the split of childcare is going to be 60/40? It would result in her having a net income of £4k and no mortgage to pay whilst I would be left with £2.3k for everything which seems a rather unfair outcome. My position is:

- Sale of family home by the time the youngest is 11 when she can work full time and equity split 80/20 in her favour;
- She pays the mortgage as she is receiving the lion's share of the equity and benefiting from use of the home;
- CMS maintenance plus £200 per month for three years whilst she adjusts (this will be nearly her whole mortgage payment;
- Pension split now (£250k) at an amount to be determined based on the rest of the settlement (at a guess, something like 70/30 in my favour to offset her getting most of the equity)

For added context, with my proposal she would have a net income of around £3.4k and mine would be £3.8k before commuting costs. She has also just finished a period of retraining but decided not to pursue the better paid career it offers.

I know it is difficult for a solicitor to ascertain based on rough facts what the outcome will be but I'm hoping that the worst case is a nominal maintenance order by the time all of the children are in secondary school with no other ongoing financial ties and a clean break from the nominal order when the youngest is 18?

For what it's worth I think it very unlikely that you should be liable for the mortgage plus child maintenance plus £300. After all, maintaining children involves contributing to the cost of their accommodation so there is a certain amount of double counting going on here. Similarly the notion that your pension should be split 50/50 when the children are 18 is absurd. Who in their right senses would keep contributing to a pension in such circumstances?

You are right that it is impossible to be dogmatic without knowing all the facts but on the face of it your proposals seem to be more reasonable.

Thank you for such a quick response David. I think the main sticking point will be when the house gets sold. She wants it to be when youngest is 18 whereas I'm saying 11.

There's enough equity for her to buy a suitable albeit smaller property without needing me named on her mortgage and given I'm:

1) Offering another 3.5 years in the FMH that will provide additional time to build equity before moving and;
2) That she could reasonably be expected to earn twice if not more than what she currently earns (which, whilst not significant in net income terms because it will be offset by reducing universal credit will increase her mortgage capacity a lot);

I'm hoping a judge agrees that my proposal offers long enough for her to adjust. I think the problem is she sees me as the financially reliable one and wants me connected as a form of insurance (and a means not to have to work full time), which I don't think the law supports?

Also, am I correct in thinking that if the court were to force me to contribute to her mortgage, it would have to be through spousal maintenance (which will impact her universal credit claim) and could not be a direct order to pay the mortgage? My understanding is that a court cannot order me to pay a third party (or at least cannot enforce it) and if I am ordered to contribute to her mortgage I'm keen for it to be in spousal maintenance so that it forces her to improve her earnings in order to see any benefit from it.

A court will want to secure a clean break between you to the extent that it can. It would be very reluctant to provide for a long continuing financial arrangement (apart from child maintenance). Therefore to the extent you can show your proposals meet your wife's reasonable needs it will usually be looking at something with a shorter rather than a longer duration. This is not to say that every judge is the same. They are not. That is why it is impossible to provide absolute certainty.

And, yes, you are quite right about you being ordered to pay the mortgage. That is not something has the power to order (although it does have the power to lean on people to give undertakings to pay). A mortgage would normally be paid by the person living in the house out of any child or spousal maintenance received.

I'm always curious to understand how people can be leaned on to make undertakings like that. Or why people get bullied by the other person's solicitor. Surely everything before the final hearing is a performance and the best results come from staying calm and obeying the law, rather than being strong armed into something unfair by people who either don't have (or have not read) all the information or who have a conflict of interest?

>>I'm always curious to understand how people can be leaned on to make undertakings like that.

Courts can be very persuasive if they are ever put into that position. Typically it goes, 'Either you give the undertaking or I will order X'. Neither your own lawyer nor that of your opponent is in a position to do that but courts are. All a lawyer can do is say, 'If you do not give an undertaking there is a risk that the court will order X'. It is the difference between a risk and a certainty.

Interesting. I think I would still take a known spousal maintenance figure over a mortgage that could vastly increase because of interest rates though so I think I would be hard to lean on! Spousal maintenance that was imposed on me could also presumably be abruptly stopped in the event I lost my job, couldn't work etc whereas I cannot think helping an undertaking to pay towards the mortgage being harder to get out of in the event of financial difficulty. Perhaps I'm incorrect but a sum based on ability to pay sounds more flexible than a promise to pay.

>>Perhaps I'm incorrect but a sum based on ability to pay sounds more flexible than a promise to pay.

No, you are correct. Mind you, spousal maintenance ordered by a court does not reduce automatically if the income of the person paying falls. Any reduction has either to be agreed with the recipient or application has to be made to the court to vary and such an application takes time (and is almost invariably opposed if the reduction is not agreed). Furthermore a court has the power to alter other terms of a previous settlement (such as the percentage share of a property which the person paying would otherwise have received) if the payments are reduced. Whether these things are fair is another matter.

I'm thinking more along the lines of involuntary job loss. I guess if I lost my job the court could order I carried on paying but I'm not entirely sure where the payment would come from if I wasn't earning and all my capital was tied up. As you say, they could adjust the property percentages but that wouldn't solve the more immediate cash flow problem!

However, this is all very theoretical. My new solicitor I spoke to this morning has said it would be a strange day in court that gave her more than a couple of years of spousal maintenance and her chances of getting anything more than child maintenance and a nominal order from day one were iffy (I'm paraphrasing!) anyway. This based on his experience of similar circumstances in the past few years.

Thanks to you and my new solicitor I'm breathing a little easier this afternoon!

>>I'm thinking more along the lines of involuntary job loss. I guess if I lost my job the court could order I carried on paying

It's not so much that a court would order you to keep paying. Rather it is that if a court orders spousal maintenance and the person paying loses his job (it is almost invariably a 'he') then the person paying has to apply to the court to vary the maintenance and from making the application to a court decision takes an inordinate amount of time. Of course, the person paying could just stop paying as soon as he loses his job but most solicitors would be reluctant to recommend that because it involves advising a client to breach a court order - ie the spousal maintenance order.

Of course, it is disgraceful that it takes so long between making an application and getting a decision but there are very few things that civil servants do quickly (except to work from home as much as possible).

I think if I lost my job and had SM to pay I'd have no choice but to stop paying as I just wouldn't have the money. Especially if all my capital was tied up in a house I wasn't allowed to sell. I know you cannot tell me to do that as a solicitor but I'm aware the courts are, on the whole, understanding in these situations and tend to take a dimmer view of the other party who wouldn't be reasonable.

I know what you mean about the courts being slow, it will ne 9 months from applying to court and attending an FDA in my case.

Have you spoken to a mortgage broker to demonstrate mortgage capacity?

I had to read up a lot on these due to my own financial situation (I'd been left with a tonne of debt in my name, my STBEX applied for without my knowledge). As part of the report, the broker showed how certain scenarios would improve/impact my borrowing capacity. In my example, they showed how clearing off the debt as part of the settlement would mean I could afford a mortgage of my own.

During the application, I recall there was a section on my employment and job security - they asked if there were possible upcoming changes that could impact my borrowing capacity. I went with these brokers, a lady name Clemmie Mortgage Capacity Reports