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Property settlement advice please

separated for 6 months , 3 children, ex husband refusing to leave the house i own

hi as quickly as i can
  • i spent 10 years with ex husband
  • 7 years married
  • he came with 450k towards buying our 1st house
  • we had a mortgage that was small as his father paid half off
  • sold the property 4 years after purchase, doubling our money
  • husband had terrible gambling problems that his family bailed us out of debts several times
  • we had 2 kids in the first 5 years together
  • i worked consistantly for the 1st 7 years, juggling nannes and daycare and husband to child sit while doing so
  • we split the monies from sale of house into separate accounts
  • i purchased another property elsewhere with a mortgage in my name and mortgage in my name
  • he blew his half of the sale of house money on stupid selfish things
  • his father bought him a business
  • i ran his business from home and  my two small businesses from home while llokking after 2 kids
  • he was caught having an affair and moved out for 5 months
  • we reconcilled and had a 3rd child
  • i worked parttime from when she was 6 months old in the 1st year
  • he continued to gamble and blow the monies that he made from his new business
  • his father paid out my line of credit due to the fact his contributed little through that year
  • i asked him to leave as nothing has changed and he refused
  • i moved out of my house with our 3 kids into a rental for 6 months
  • the rental ended and i have now moved back in and have had the house on the market
  • he wants a pay out figure to leave that i cant afford to borrow or half of everything
  • how do  iget him  out and keep my house as my contributions are financially less if you take in his fathers monies being taken into account
  • the father has said they will claim him bail outs as equity in my home and that came with 450k in the 1st place- which he has blown more than that and because i did his accounts and kept his wages reaaly low , he doesnt have to pay child support

The way need not worsen your path.

mishuo

Your matter has some unique aspects that do not permit a simple response. You might considering looking at some of the books on Family Law at the quality bookshops, or first view them in the State Library. Be mindful that the cheaper books do not embrace what you will need to know. Maree Livermore has a reasonable book titled "The Family Law Handbook" by Redfern Legal Centre Publishing. This is around $60, anything less than this will quickly be set aside, especially in your somewhat complex matter.

Property cases are dealt with under section 79 of the Family Law Act of Australia 1975 which is found @ http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s79.html. Section 79(4)(e) becomes Section 75(2) found @ http://www.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s75.html , this addresses "Matters to be taken into consideration in relation to spousal maintenance"

Your information is somewhat sparse. The actual time of cohabitation affects the consideration as to what extent the initial gift of funds for the house for instance is merged with the common asset pool. The assertions of his father in respect of equity may not be valid. Gifts and inheritances are contributions which are factored in on a tapering basis as years pass. After 27 years say, judgements suggest that they are considered as being intermingled. After 10 years they are to an extent blended.

Take special notice of Section 75(2)(o)  "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;". This is the part which allows inappropriate behaviour to be given a weight that under the facts you have presented might favour you. The part includes violence, gambling and acts causing diminution of the assets, perhaps in respect of the business that he caused to fail.

Most importantly gather your information and keep a diary of events and any documents which relate to the period of cohabitation.

The grandfather is likely to cause himself financial problems if he asserts untenable propositions. If possible the best resolution is negotiations. Getting all involved in how the Courts interpret Family Law is a challenge. The courts interpretations are not commonly known until one encounters them.

Consider attending a solicitor. The sometimes give free initial consultations. Sign up only if you feel it absolutely beyond you. Many self represent throughout, but at all times be ready to negotiate. First establish what a reasonable outcome is and base your actions on that foundation. Be mindful that Family Law is a specialised area and that a good solicitor can cost around $350 to $450 per hour. The lesser effective are unable to approach the matter with the necessary understanding.

"Getting him out"  whilst maintaing a functional relationshipwhich permits you both to act in the best interests of the children is a paramount consideration. Should you act in anyway that reflects poorly on you parenting capacities whilst finalising the property component of your relationship this can be detrimental in regard of orders in respect of your children. There is a link between property and parenting that until the property is resolved has an intra-dependence.

Maintaing a relationship between the grandparents of both sides can contribute to a resolution that all will appreciate in the future when the children choose whom to have in their company at 21sts, weddings, and more importantly in their lives. This can contribute to the property as each grandparent would like to feel their grandchild has a secure place to evolve and become their friend. It may be an ingredient that melds the mix.

If you retain a presence in the property for genuine purposes, then the court, if possible, can mould the orders around the need of housing for the children. The last place you want to be found arguing is in a Family Court! Once the court become involved in determining the outcome, the parties to an extent become passengers on the way to where unemotive rational thought would have found you a long time back.

There is a new type of resolution called "collateral law" that has the advantage of excluding solicitors whom contribute acrimony into relationships, take a significant portion of the common pool and leave collateral damage in their wake. Its worth a look? See and listen @ http://www.abc.net.au/rn/lawreport/stories/2009/2764559.htm "Rather than commence proceedings in the Family Court, some lawyers are encouraging clients to sit down with their ex-spouse and say "let's resolve our differences without litigation". And if the talks fall over, their lawyers have to walk away and hand the client on to another legal eagle."

So as I began and continue to feel your matter has elements that require you to tread carefully and not agitate that which need not be disturbed.

Hope it passes in an unacrimonious way.

What is done for you, let it be done, what you must do, be sure you do it, as the wise person does today that what the fool will do in three days - Buddha
  • i spent 10 years with ex husband
  • 7 years married - Not a long marriage but not a short one either. Comes in to play for the initial contribution from your ex.
  • he came with 450k towards buying our 1st house - The shorter the marriage the more he gets to keep of this. It depends on other s.75(2) factors.
  • we had a mortgage that was small as his father paid half off - Do you mean paid off half the total amount of the mortgage? He might argue that this was a loan to you.
  • sold the property 4 years after purchase, doubling our money - On paper you are entitled to at least 50% of this increased value but other things need to be looked at.
  • husband had terrible gambling problems that his family bailed us out of debts several times - Do you have proof of gambling and his family paying off the debts.? This is called wastage.
  • we had 2 kids in the first 5 years together
  • i worked consistantly for the 1st 7 years, juggling nannes and daycare and husband to child sit while doing so - To your advantage that you worked & looked after the kids.
  • we split the monies from sale of house into separate accounts - How was the split? Was it 50 - 50?
  • i purchased another property elsewhere with a mortgage in my name and mortgage in my name - This will still be part of the joint asset pool.
  • he blew his half of the sale of house money on stupid selfish things - Depends on what you consider selfish. This is different from wastage under s.75(2)
  • his father bought him a business - Any form of contract that says it is a loan or that father has equity in the business?
  • i ran his business from home and  my two small businesses from home while llokking after 2 kids - to your advantage.
  • he was caught having an affair and moved out for 5 months - The fact of having an affair is not important to the court. As you got back together the 5 month separation will have minimal impact on the asset splitting.
  • we reconcilled and had a 3rd child - In your favour.
  • i worked parttime from when she was 6 months old in the 1st year - In your favour.
  • he continued to gamble and blow the monies that he made from his new business - Called wastage. Do you have any evidence?
  • his father paid out my line of credit due to the fact his contributed little through that year  -Evidence?
  • i asked him to leave as nothing has changed and he refused. - He does not have to leave just because you asked.
  • i moved out of my house with our 3 kids into a rental for 6 months - Evidence, lease etc.
  • the rental ended and i have now moved back in and have had the house on the market - Is the ex still living there?
  • he wants a pay out figure to leave that i cant afford to borrow or half of everything - The house will probably have to be sold. This is normal.
  • how do  iget him  out and keep my house as my contributions are financially less if you take in his fathers monies being taken into account - You can not force him out unless he commits an act of viloence against you, and you inform the police. Be very CAREFUL about using this if not true as it will be obvious and discredit all your other evidence.
  • the father has said they will claim him bail outs as equity in my home and that came with 450k in the 1st place- which he has blown more than that and because i did his accounts and kept his wages reaaly low , he doesnt have to pay child support - He might try that argument but from what you have said here it will have little weight. If you know what he earns ask the CSA for a reason 8 COA.

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