VIC Property Settlement Issues - What to Do?

[Palmac]

Hi all, here's my situation.

Husband, deponent:

We were married for 25 years. On Sept 2016, we split (I moved out, wife and 2 kids stayed). 2 kids are both healthy 21 years old and 17 year old. House value is $1,200,000 (owed $380K) with shared liability. Factory value is $650,000 (owed $450K) with shared liability.

I own a small business, not coping. Her team says its worth $800,000. No way it is since it has debts and liabilities.

Since our mutual separation in Sept 2016, I have been paying for the two mortgages and had been paying my ex-wife $1000 per week from Sept 2016 to Feb 2018 ($73,000) my business is in worse shape than when we separated in 2016.

I had to stop paying her $1000 per week due to factory mortgage having principle added adding another $2000 per month. I have continued paying both mortgages.

My own accommodation is $2000 per month. My new partner and I are raising a 4-year-old boy. She stays at home raises the child. I recently paid $1800 to have both properties valued by an independent certified property valuer. These were rejected by the other party!!

So far since September 2016, I've spent $200,000 on both mortgagees and family assistance. WIfe has contributed nothing to mortgages in that time.

My business is much depleted due to the above costs. My work overdraft maxed out and around $80,000 debt owed.

I recently sort relief from the banks who agreed for a short time to reduce the repayments on the two properties. This is due to expire soon. Wife refused to enter private meditation and has taken me straight to court.

She is dragging me through the courts and won't relent.

I intend to self litigate with assistance. My next hearing is 16th Jan. "hearing defended interim". Court has made some orders.

Her lawyers and barristers were in court last, very aggressive.

Any help and what I should do would be appreciated.

 

[Scruff]

Way out of my depth, but there's a couple of things you can clarify that I think would assist the other members in helping you:

1. "2 kids both healthy 21 and 17yo" - what's their situation: working, studying full time, etc? (Without a disablility involved, $1000 pw seems pretty steep for only one child under 18 years of age considering the financial strain you're under.)
2. What exactly do you want to happen with the assets (home and factory)? (For example, she take the home mortgage and you take the factory mortgage, etc.)

 

[Rod]

I think you are risking a sizable chunk of property if the ex's lawyers are going aggressively.

I reckon you need some legal assistance.

In the meantime if you are not in the house, and not using the factory, stop paying mortgages. Time to up the ante and make her feel some of the financial strain you are under.

If you'd got yourself good legal advice you may have saved yourself a good chunk of the $200K, and you want to continue down the same path???

Seriously, get some legal advice before you blow more money.

If you want some proper legal advice, check out my email address found at www.vichelp.com.au

 

[Palmac]

Way out of my depth, but there's a couple of things you can clarify that I think would assist the other members in helping you:



1. "2 kids both healthy 21 and 17yo" - what's their situation: working, studying full time, etc? (Without a disablility involved, $1000 pw seems pretty steep for only one child under 18 years of age considering the financial strain you're under.)
2. What exactly do you want to happen with the assets (home and factory)? (For example, she take the home mortgage and you take the factory mortgage, etc.)

Thank you Scruff and Rod,

Palmac:

1. Daughter, 21, is at uni. She works part-time, has a car, lives at the house. Son, 17, is at high school, does a little part-time work also.

2. There is on current certified valuations around $200K equity in the factory (my work place) and around $880K equity on the house (Today).

3. Wife does now have a full-time job, $65K. Was previously on part-time work. None of these were disclosed until recent affidavits revealed them.

4. Other assets include a boat, her car, my car, her jewellery, house contents, a small business.

5. As mentioned previously here, Ive been way to generous in paying both mortgages and giving wife $1000 per week support for the first 73 weeks post separation.

The current state of play is we are in court as she has no interest in private mediation and her side have rejected mediation offers.

6. I stopped paying the $1000 family support in Feb 2018 and Just in recent times Ive have stopped paying the mortgage on the house, so as she can feel some of the financial burden. This house mortgage will increase shortly when the bank repeals its relief program and the house payment go from now $800 per month to $2100 per month!

7. The small business and my savings have been supplying the funds for the mortgages over the last 2.5 years. This has left the business's financial position in a much worse state.

8. I will continue to pay for the factory mortgage as this is my place of work and play.

Preferred outcome:

*Equity in assets be tallied and divided fairly.

* I'm am to keep the factory and boat and pay out ex-wife's share in these, I will take over over mortgage and debt in the factory outright.

* Ex wife is to either pay out my share in the house or we sell the house and divide the proceeds once the house mortgage has been settled with the bank.

* The $200K Ive paid over the past 2.5 year period be factored in to the settlement when the business and my financial position is valued and calculated.

*The house needs to be sold and funds retained in a neutral account pending settlement as my interests in the property are diminishing as Melbourne housing prices continue fall!!!!

Yes, I am seeking legal advice.

 

[Rod]

* The $200K Ive paid over the past 2.5 year period be factored in to the settlement when the business and my financial position is valued and calculated.

You are allowed to dream.

I tried something similar many years ago and was told, "you are a good boy, let's forget all that ancient history and look at what you have now." ie as of court date.

 

[Palmac]

You are allowed to dream.

I tried something similar many years ago and was told, "you are a good boy, let's forget all that ancient history and look at what you have now." ie as of court date.

Haha yeah I get that! But I'd be thinking that the $200k had to come from somewhere right? So where ever it came from has to be lighter by that amount, yes?

 

[GL1001]

You are allowed to dream.

I tried something similar many years ago and was told, "you are a good boy, let's forget all that ancient history and look at what you have now." ie as of court date.

He’s paid $200,000 to joint mortgages over the past two and a half years and his spouse hasn’t contributed at all. Of course it will be taken into account and any contrary suggestion is ridiculous.

OP, I agree with the earlier sentiment that you should seek legal advice for the sole purpose of determining what division of the property settlement you are entitled to.

Definitely don’t accept their valuation that the business is worth $800,000 and don’t proceed to the final hearing without getting the business valued.

What is the interim hearing for on 16 January? Is your spouse seeking maintenance or an early distribution of the asset pool or is it for some other Orders?

 

[Rod]

He’s paid $200,000 to joint mortgages over the past two and a half years and his spouse hasn’t contributed at all. Of course it will be taken into account and any contrary suggestion is ridiculous.

Should I appeal the decision in my situation where the extra money I paid into the mortgage was not counted at all? Not one cent.

Using the logic proposed above, any person who stays at home and provides domestic services is not entitled to a cent in a property split because they don't earn any money.

I'm not saying not to try for it, I am saying just don't get your hopes up.

 

[Palmac]

He’s paid $200,000 to joint mortgages over the past two and a half years and his spouse hasn’t contributed at all. Of course it will be taken into account and any contrary suggestion is ridiculous.

OP, I agree with the earlier sentiment that you should seek legal advice for the sole purpose of determining what division of the property settlement you are entitled to.

Definitely don’t accept their valuation that the business is worth $800,000 and don’t proceed to the final hearing without getting the business valued.

What is the interim hearing for on 16 January? Is your spouse seeking maintenance or an early distribution of the asset pool or is it for some other Orders?

In previous times, I was determined to keep it out of court and so attempted private mediation of which my wife has refused to engage in. I did get a letter from the mediator confirming ex-wife's refusal to engage.

No doubt at all that her lawyers who now have their greedy teeth well into this are steering her away from any process that may resolve the issue short of them making their full cut!

I now have no choice but to engage as she has initiated legal action, I must correct my first post here I am the respondent.

On 18th Dec, I went to court alone, with two certified valuations done on the two properties which were previously served on the other party, the court was flat out that day, overloaded, and so the matter was put aside and eventually adjourned. Outside the court, I spoke with the other side, and they rejected the two property valuations. Saying that a mutually agreed valuation must be made!!!!! There's $1800 spent down the toilet! I was their alone, my wife had a lawyer and barrister represent her.

The barrister was an AH super pushy, said that the matter will need court mediation and those independent valuations will have to make on everything and that anything I have previously had valued won't be considered. He told me how much my business was worth and I asked what evidence he had to support that claim, no real reply.

So next court date in Melbourne on the 16 Jan I will be there this with legal help. For sure!

The orders set on the 18th December require me to file and serve an affidavit setting out how the funds in my sole bank account have been applied. And then I understand that we are heading towards court driven conciliation hearings (basically mediation in an expensive room full of money hungry barristers). I've tried to explain all this to the ex-wife, but she thinks I'm trying to con her.

I have sent the other side a requirement for ex-wife's financials, to be fully disclosed as to date she has offered nothing. No reply on that from the other side.

My legal help is away for a few days over the break, but I believe where we are at right now, is at the financial assessment stage, and that these will be disclosed at court conciliation.

No doubt expensive independent forensics will be required to value all the assets, combined with court-appointed mediation (conciliation)?

I still find this whole affair disturbing as I believe all of these matters can be dealt with under the guidance of professional and private mediation, as that's were I understand 95% of these matters are ultimately resolved anyhow.

Why can't the court order the parties to private mediation prior to blowing more money on legal costs?

What's also problematic is I believe the wife is using her share of the future settlement to pay for her legal costs, thus handing her legal team a great incentive to rack up a huge bill of which she will be presented with later.

Also, I intend to keep the factory for my work and pay ex-wife out on this, but if ex-wife won't pay me out for the house then why should she be allowed to live in it rent free? while the house value and out joint equity slowly diminish with ever falling house prices. House must be sold.

Ex-wife had been hoping that she would cruise through this on an undefended basis. No chance. As despite my earlier reluctance, I'm now fully engaged, with legal help, and will introduce evidence to support my case. And require her to produce evidence to support her claims. Of which to date there have been none that can be properly substantiated.

Thank you guys do appreciate your input.

 

[Palmac]

Should I appeal the decision in my situation where the extra money I paid into the mortgage was not counted at all? Not one cent.

Using the logic proposed above, any person who stays at home and provides domestic services is not entitled to a cent in a property split because they don't earn any money.

I'm not saying not to try for it, I am saying just don't get your hopes up.

Just to clarify the $200K was ALL contributed post separation. I would suggest that at the very minimum that these funds would rightly have come from a source that would be lesser in value to about this amount. And that this may be reflected as so during the valuation process of any assets that were the source for these funds? Ie a depletion.

Also based on what their barrister says is that any claims I make to values wont be considered unless mutually agreed on and that so far the other side has rejected even certified valuations. If this is the case then its going to take independent asset forensics and valuations to determine agreed costs. All great products and processes for keeping litigants busy with their costly document production? Those legal documents are as good as cash bonds, negotiable instruments!

Do appreciate your input.