The Anton Savage Show – Getting a Divorce

Anton

My second outing in the Consumer Slot saw me on familiar ground – Family Law. This is the email we got from a listener:

I desperately need your advice.

After 16 years my husband and I are splitting up. He has had an affair and has moved out since the 1st march. He is in a house on his own (rent 380 a month)

We have a 7 month old baby boy who lives with me. My husband has not seen him since the 24th may – his choice.

We are now going to mediation to try and sort out finances and assets. I have a solicitor.

My question to you is regarding the house – what are my options.

As I’m working I am probably worse off!! I take annual leave Monday,parental (unpaid) Tuesday and work wed,thurs,fri.

Will I have to sell the house? Or buy him out and try and get a mortgage in my own name.

I am so worried about it. Any advice or help you could offer me would be appreciated.

And here are my notes on the show:

You are entitled to maintenance in respect of the child and possibly for yourself. There is no ceiling on the amount of maintenance that can be awarded, but the District Court can only order €150 per child or €500 spousal maintenance. If you are seeking more than that, you need to go to the Circuit Court. Of course there’s nothing to prevent you both from agreeing any amount of maintenance, without going to court.
While Child Maintenance is almost always ordered, courts are slower to award spousal maintenance, especially where both parties are working. In reality though, courts understand that the money all goes into the same household pot anyway.

You can apply for maintenance at any time, i.e. you don’t need to wait until the divorce proceedings. If you are in financial difficulty, you should apply right away, so that you can get some maintenance while you wait for the divorce to work its way through the courts. The same goes for access. You’ve said your husband doesn’t want to see your child, but if he wishes to he is entitled to apply to the District Court for an Access Order. Again, this is something that can be agreed between you without going to court.

Ireland has a no-fault divorce system, so the court will not be concerned with the break-up of the relationship, but with the future – what happens to the children, what happens to the house, ensuring that proper financial provision is made for all parties involved. The person who has custody of the child (i.e you) is often granted the right to live in the house until the child is no longer dependent (i.e. 18th birthday, or graduation from full-time edication). After that, there may be a case for selling the house, or for one of you buying the other out. That might include an examination of how much equity each of you has in the home – which will depend on how much money each of you paid towards the mortgage payments, the deposit, and the expenses of the household in general.

The arrangements for houses, mortgages, etc vary from case to case. The most important factor is how much the parties are earning. Both parties are required in a divorce to draw up an “affidavit of means” giving details of their income, expenses, assets and liabilities. The court will want to ensure that both parties can support themselves and any children in their custody, so they won’t order a bigger financial contribution than your husband can afford. On the other hand, where people are working and earning, they are required to support their children, which includes putting a roof over their heads. Sometimes, for e.g. where the house is quite large and valuable, courts will decide that the best way to use the equity is to sell the house and split the proceeds between the parties, allowing both to buy new homes. Courts often don’t like uprooting children from a family home, but given that your child is only a baby, that isn’t as big a concern here.

Any final settlement will take all the circumstances into account, so the amount of maintenance he has to pay will be influenced by the amount of the mortgage payments. If you can afford to buy him out, that would involve paying him a lump sum for the equity he owns in the house, and then removing him from the mortgage going forward. Against that you would have to weigh the maintenance the court believes he should pay – the court will look at the big picture. At any point if your financial situations change, i.e if either of you becomes significantly more or less wealthy, you can return to court to vary the maintenance arrangements. As your child gets older, various new expenses (school fees, etc) will arise, as well as the usual effects of inflation.

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