NSW Should I settle for this outcome or go to court?

[sammy01]

1 - get orders for you to have the kids...
2. As far as the house. Clearly defined orders. So my rough version.
a - house to be put on the market with XXX(agent) at their recommended sale price.
b - In the event the house does not sell in 6 weeks the price drops by $10k and continues to drop by $10k every 4 weeks there after (unless both parties choose differently)
c- If the house has not sold within 4 months it goes to auction.
d- the mother be responsible for ensuring all maintenance is done and that the property is presentable for sale
e- In the event it does not sell after auction the father has the option to either move in and the mother vacate OR put tennants in the property.
F- while the mother lives there she is soley responsible for rates, water, electricity gas, lawn maintenance etc etc.

You need contingencies for your contingencies. Mate by the sound of things she's living a fine life in a nice suburb and when the gravy train ends she's gonna find herself living is substantially less luxury. I'm probably stating the bleeding obvious to you, but i don't this she understands it.
BTW - your intention here - keeping the kids in the house is honourable. God bless ya. But. there is nothing in family law that sees honour being regarded well. Infact, ask any family law solicitor and they'll tell you dirty tactics works best. And - I get trying to save the kids from having to move etc... But they're gonna be moving in 2 and a bit yrs time. Based on the ages of the two younger kids, better to move now while still in primary school. If they have to move schools best done asap. Bloody good time to sell. And is moving house really all that much of a trauma. Sorry mate, school teacher here. Kids don't need cotton wool wrapt around them - they need a can of toughen the fcuk up.
If mum wants to play hardball, my advice? Give her 6 months to get out of the house (which is reasonable) a 60 /40 asset split and you pay child support and I know you've mentioned asset split has already been agreed, so I hope is is around the 60/40 mark give or take 10% (btw- what i'm suggesting is reasonable).

Scenario - you go to a restaurant - the food is s**t. The waitress farts in your face as she walks past and ashes her ciggie in your dinner. Do you leave a tip? Now lets imagine the waitress is the ex. Do you give her extra $ when she is being a right stubborn b***h? Psychology 101 - if you pay someone to be rude they will be more rude in the hope of getting a pay rise. You can't buy yourself out of this one.

And as for the kids- if you think throwing $$$ at mum is gonna stop this divorce from causing your kids emotional pain then you're an idiot. Giving the kids great holidays, same - won't help... See there are two things you wrote in your first post that I'm gonna smash you on.
"but I hate the idea of having to force my kids to come to stay with me if they don’t want to"
Your kids need their dad right now. They need you to be strong, kind and loving. They need you to tell them that it will all be ok.
And
"My ex wants me to pay for extras above Child Support " of course she does. I want you to buy me a case of beer for spending my time writing this. But I doubt you will.... Child support is calculated using a complex formula - It is meant to be fair. I've never heard of a mother saying 'Gee I'd like you to pay less child support....' Mate - my ex wants me dead, but I'm not gonna agree to her requests...

Now go make a cuppa and read this again. Maybe print it and read it on your lunch break today. A bit of tough love? sure. But good advice.
cheers

 

[Atticus]

Could I put in the agreement a $ penalty for her if we miss the deadline? Would getting a Financial Consent Order (rather than BFA) protect me more - i.e. quicker to get a court to force her to comply if she does renege?

You could have a clause like that put in a BFA, if she signs it all good .... Doubt a consent order with a clause like that would be accepted by a registrar though ..... Only way to get either a BFA or consent order enforced is through court.

I like @sammy01 suggestions & pointers.

 

[Mark10]

The case of beer is yours Atticus (standard beer that is) - just tell me where you want it delivered. Same for you sammy01 if you want one. I'm getting advice on here I'd have expected my collaborative lawyer to let me know - but she hasn't.

Tough love is fine Atticus. First time for me so I don't have experience to go from. Hard to judge the best approach - especially when it's not just a financial decision and having to weigh being more generous to incentivise a settlement now versus more stress & legal cost of drawing this out. I do want my risks locked down though - so I appreciate all the advice/views - detailed agreement on the property sale and the risk of being on the hook for medical gap payments etc.

So I'm guessing you'll tell me this is not good either?: My lawyer has encouraged me to offer 70/30 on the property with the Super used to balance to get us to 60/40 overall. At first I didn't like it, but then I thought - the balance is sitting in my Super which is earning circa 8% pa - and sure I'll get less on sale but easily enough to cover 20% deposit and assuming Sydney prices will always inflate over the long term then it's good to have higher leverage yes? (as long as I can afford the interest payments of course). I know this is not a property forum - but I'm thinking I'll buy a smaller investment property and continue to rent a place big enough for me and the kids for the next 10yrs - then maybe move to QLD.

Also: about 10% of our asset base sits in overseas Super that I built up before I met my ex (she had virtually zero). The lawyers have included that in our asset pool but tell me they've accounted for that in getting to their 60/40 assessment - does that sound right?

 

[sammy01]

Ball park 60/40 is fair - Look bloody hard to give good advice without all the numbers. But:

1. She is gonna be primary carer, so that impacts on earning capacity.
2. She has a smaller earning capacity.
3. You have more super, so your future is looking ok...

This is the big one. Sure you could probably get closer to 50/50 - Let say 44/45. But you might not. YOU will wind up spending thousands on solicitors to get it. So is it worth it? nope.

 

[Mark10]

Thanks sammy01. Yep, agree with you. I'll certainly be glad to stop paying legal fees that's for sure.

 

[sammy01]

As far as a penalty if she doesn't organise the sale. That gets tricky. You have to apply back to court.... Look let's not look that far into the future, you'll die of stress if you do.

 

[Rod]

Any agreement to pay extra needs to take into account what happens if you lose your job.

You don't want to be stuck paying set amounts if you have no income. While a BFA can be changed, it is often not cheap or quick.

 

[Mark10]

Thanks Rod,

I guess losing jobs cuts both ways (albeit I'm the bigger earner - so major shock if I lose my job - and I've only got savings to last maybe 3 months out of work).

My commitment to pay towards the mortgage is the biggest piece. So what about this: Either of us can trigger sale of the property if either of us loses our job (and/or I can defer my mortgage payments to come out of sale proceeds down the track).

And my payments towards the mortgage will end when we hit the sale date - which should hopefully dent her holiday savings enough to make her want to sell!

 

[sammy01]

Just checking your wording.
I"m gonna paraphrase. You agree to pay 40% of mortgage for 2 yrs? maybe 2 1/2 yrs? nice fair, keeps kids roof over head.
But need a clause after 2yrs (if that is how long you want to pay then when the house goes on the market YOU stop paying.
Amateur lawyer here would want wording like.
You pay for 2 yrs, or until the house sells but you will not continuing paying after the 2 yr period....
So like you said, if she wants to kick on living there beyond that and cant afford it that is not your problem.... EXCEPT it is. See if she chooses to stay living there and not covering the mortgage, what do you do? let the bank take it? OR wind up snookered with no other option but to keep paying to stop the bank taking it?
See mate, my thinking is get it sold. Move on... Look I did something similar back in the day. The ex never cleaned the house and made it hard for prospective buyers to have a walk thru. In the end it sold, but her games meant eventually she was backed into a corner because I decided I wasn't gonna bail her out, i was sick of the games. The end result being we sold for less because the bank was breathing down her neck... Look back then the market was not as seller friendly, finding a buyer was hard, but whose to say that wont be the case in 2 yrs.
Short version. What ever you agree to YOU must make sure it is water tight. But you also need to contend with the fact that if she fails to comply, you'll be back to court to get something like an eviction notice to get her kicked out so you can move back in until you can get it sold.... Look it is messy.
BUT - be prepared to walk away. Say nope and let the banks take it.... BLUFF But this s**t gets messy quick

 

[Rod]

Either of us can trigger sale of the property if either of us loses our job (and/or I can defer my mortgage payments to come out of sale proceeds down the track).

You pay your lawyer for the wording, I just pointed out a trap to be careful of.