Marriage breakup + kids

[dl23]

Hi

So my wife and I met in high school and have been together for 24 years, married for 14 years. Over the past 8 years or so (after second child, now 😎 was born, we have had some ups and downs. I would just sometimes have a go at her about random stuff; money, clothes or food. Then she would try and talk to me and I was too pigheaded and wouldn't really listen.

Now the time has come where she has had enough and wants to sell our new and amazing house, separate into smaller houses/units and rent. We share the custody of our two kids. I am really scared about telling the kids and don't think I can be there for that process. They will be devastated.

I have been trying to say sorry to my wife via emails, text, chatting, video montages and poems but she tells me to stop and that she doesn't love me anymore. She said as I keep hassling her about getting back together, she doesn't even like me and the thought of talking to me or seeing me makes her physically ill. She also said that because I am making her angry, the shared custody will be so much harder.

I have been trying to show her over the past few weeks the new me. I have been calm, positive (as best I can in this situation) and more composed. I would sometimes shout at the kids for being silly but now I use a calm voice always (even when they test my patience).

I haven't been sleeping much and not eating hardly at all for 5 days (lost 4.5kg), due to being nauseous and anxious.

We have just communicated over email and she doesn't even want me to talk to her anymore or make dinner or hot drinks. I responded with I would like to keep doing it. I told her I still love her and apologise a lot for making her angry, when that is not my intention.

I am really scared of not being with her anymore and not living her. I love her so much, even when she verbally attacks me and says she doesn't love me anymore.

I can't rely on my parents as they are away and my wife and my parents never really got along. They kind of caused a lot of the tension and some of the reasons we fought.

How am I going to get through this?

[dl23]

Hi Mr Paul

Can we not just sign an agency agreement, giving the real estate exclusivity in selling the place? We don't need to sign a contract of sale just yet. Surely just the agency agreement can be signed without the contract of sale?

Would exW claiming her false claims of domestic violence have anything to do with the banks decision for requiring an agency agreement? They are making it difficult or is this common practice.

ExW claimed to have had her half of payments paused, which was a lie. So she hasn't paid any mortgage payments since September and I stopped in November.

Thanks

dl23

[Guest909]

Can we not just sign an agency agreement, giving the real estate exclusivity in selling the place? We don't need to sign a contract of sale just yet.

Once you have a signed "Agency Agreement", you are required (by law) to provide the agent with a "Marketing Contract of Sale". The Marketing Contract of Sale is prepared by your conveyance and given to your agent.

In most states, an agent cannot market a property for sale unless he/she has a Marketing Contract in there hot little hand. The contract is not signed until a buyer is found - that could be 6 to12 months after the Contract of Sale is prepared

Surely just the agency agreement can be signed without the contract of sale?

No, they come as a pair.

Would exW claiming her false claims of domestic violence have anything to do with the banks decision for requiring an agency agreement?

Absolutely not. The banks are in the finance business. They are not social workers or lawyers. The bank just wants to know that you are doing your bit to resolve your financial problems.

They are making it difficult or is this common practice.

I've never defaulted on a loan; but this is what I would have expected.

After you have bought and sold a few houses, the system will make a lot more sense.

Cheers

[dl23]

Hi Mr Paul

So there is pretty much no way out of this? I am being forced to sign this before even a parenting plan with consent orders is completed.

The only thing that could prolong this to allow more time for parenting to be sorted out is to not agree on a selling price (probably can't do this if it's already in the contract of sale) or to not to agree with offers for the house (exWs agent from July wanted to put it on thr market as EOI and with private advertising - no signage at the front).

My dad suggested that I could make the selling price really high in the contract of sale to kill time or might even get lucky and get someone willing to pay around that much.

I am really stressed out.

Thanks

dl23

[Guest909]

Hi dl

When you list the property for sale with an agent, the agent will get a Marketing Contract of Sale from your conveyance. At this point the contract is unsigned and purchase price is blank. It is not a real contract at this point.

When the agent finds a buyer in 3-6 months time, and you agree on a sale price, the Marketing Contract becomes the Sale Contract when the sale price is added and you, your wife, and the buyers sign it. At this point the deal is done; you have a real contract.

Now, stepping back a bit, the bank wants a copy of the agency agreement. No problem; get one. This agreement is between you and the agent. It will set out the type of agreement (usually exclusive for 90 days), agent commission, agent appraisal value of the house, listing price for the house.

My dad suggested that I could make the selling price really high in the contract of sale to kill time or might even get lucky and get someone willing to pay around that much.

This will slow down the sale of the house and give you time to get consent order in place.

Alternatively you can simply reject all offers to buy until consent order are in place. An Agency Agreement can't force you to sell and the Marketing Contract is just a piece of paper until it is filled out and signed.

Think of this as "option 4" - probable the best option if your wife is still defaulting on the payments.

It's not a bad as you think, you have 4 options now.

Cheers

[Guest909]

Hi dl

Just as a reminder, the law in WA may be a little different to NSW.

In WA the real-estate agent may be able to market or list your house for sale without a Marketing Contract of Sale. However when a buyer is found, and a selling price is agreed, a Contract of Sale is filled in and signed by all.

From your point of view, it makes no difference. You can simply reject all offers until parenting orders are in place. Just because the property is listed for sale, you are under no obligation to follow through with the sale unless you are happy. This will piss-off your agent, but you cannot be forced to sell unless you are ready.

If you do decide to go down this route, set a high asking price as your dad suggested. In addition tell your agent that you do not want to sell until you have parenting orders in place. The agent will draft an agency agreement and do nothing until you are ready to sell.

The above is only required if your wife continues to default on the loan and you wish to apply for a mortgage freeze.

[dl23]

Hi Mr Paul

So I have drafted up an email/letter to send to exW
about the agency agreement.

Basically asking her to contact the agent she had out earlier on so we can get an agency agreement sorted. I told her we also need it for the mortgage freeze as well.

I told her house can go on market but it won't actually be sold until parenting plan is converted to consent orders and property mediation is done as well.

I also aske her about putting a price on house instead of EOI as she mentioned the real estate agent said.

You mentioned previously about finding a buyer in 3-6 months. The market is hot over here at the moment, so hopefully it will sell before that timeframe.

I was going to send the letter/email before parenting mediation on Wednesday. But now I'm thinking I wait and try and see my lawyer directly after mediation first before sending it off.

Thanks

dl23

[Guest909]

If your wife continues to default on her share of the loan, the bank will step in a sell the house unless you make up the difference.

If you don't want too, or can't pay the full mortgage by yourself, the house will have to be listed on the market so that you qualify for a mortgage freeze. If you do decide to go down this route, your wife will most likely pull out of mediation altogether. She has got everything she wants.

To keep your wife at mediation table, I would advise her that you will reject all buyer offers until court orders for property and parenting in place. Hopefully this will motivate her sort out those issues quickly.

You mentioned previously about finding a buyer in 3-6 months. The market is hot over here at the moment, so hopefully it will sell before that timeframe.

If the market is hot, the house may sell on the first open home. The bad news is, you want time to sort out consent orders.

I was going to send the letter/email before parenting mediation on Wednesday. But now I'm thinking I wait and try and see my lawyer directly after mediation first before sending it off.

I think this is a wise move. Your lawyer might not like the plan to list the house for sale. Hopefully he can suggest a better approach.

If your wife continues to default on the loan, there are no easy answers. All you can do is minimise the damage and keep her at the mediation table as best you can.

Your position is difficult, but not impossible.

[dl23]

Hi Mr Paul and EM

So second parenting mediation failed. I was still offering the 50/50 split with alternating weekends and she wanted 3 days for me and 4 days with her each week. I wouldn't budge and she refused to go 50/50. She has no right to have more time. I spend every school holidays with them (12 years) plus do all their sports after school with them and did 3 months of 3 sports every weekend by myself this year.

So the mediator said it would cost min 90k each (being conservative) for parenting and also property. So 180k and it will take around 30 months for each. Probably at the same time.

I spoke to my lawyer just then and he said we can apply for consent/parenting orders at initial hearing whereby both parents have access to the kids and as it's pretty much a 50/50 split, it would work out like that. He said I can move out of the house before then and he said it wouldn't work against me as it's a complete breakdown of the marriage and we have been under the
same roof for 7 months now.

He said I would still have to pay rent and mortgage but that may come into my favour whereby the judge would see me doing the right thing and could cut me some slack.

I am happy to put the house on the market as is she. So we could do that asap but it would be better to have some kind of plan in placed from initial hearing first.

I also thought a bout just doing the 6 days for me and 8 days for her over the fortnight with my alternating weekend roster still. The only difference being it would go,

Me: Mon/Tues night
Her: Wed/Thurs/Fri her

And we alternate Sat/Sun combo.

And I could push for a couple of extra days in the holiday period or flip the roster around so it's 8 days for me and 6 days for her.

I still have to have proper phone conference with lawyer tomorrow and also speak to my parents about it.

Thanks

dl23

[Guest909]

Hi dl

I was hoping that a bit of common sense would prevail. Sadly, that was a bridge too far.

I wouldn't budge and she refused to go 50/50.

Did she give any reason? Common sense would dictate that 50/50 is not unreasonable. If the matter goes to court, the judge will start at 50/50 unless there are good reasons to vary the time. How you achieve the 50/50 split is something mediation was supposed to facilitate.

So the mediator said it would cost min 90k each (being conservative) for parenting and also property.

If you cannot agree on a parenting plan, court is the only other avenue that I know of. In regard to property, you can ask the court to order "Arbitration" by agreement. Arbitration is cheaper and quicker than court. The court will be more than happy to deal with the parenting matter while arbitration is used to resolve property. Talk to your lawyer about splitting parenting and property.

He said I would still have to pay rent and mortgage but that may come into my favour whereby the judge would see me doing the right thing and could cut me some slack.

This was one of the options that I mentioned earlier. The only drawback is expensive litigation will be needed to recover your post separation contributions. It is an option, but it has knobs on it. Probable best not to go here; but discuss with you lawyer.

I am happy to put the house on the market as is she.

If your wife continues to default on the mortgage, this is probable your best option. When the house sells, the bank will take its share. Whatever is left over can sit in a trust account until orders are in place. The money cannot be released until you sign for it. This might be sufficient to keep your wife at mediation until a property and parenting agreement is hammered out. On the negative side, you may lose access to your boys until parenting orders are in place. This is a better option than court or arbitration.

I hope this help!

Paul

[Guest909]

Hi dl

Just checking in to see how you are going; it has been a while.

Are you still living under the same roof, or has it all become too much to bear. I can think of nothing worse over the so called festive season. Hopefully you guys have been able to reach some type of agreement about the sale of the house by now.

I hope that 2021 will be a better year for you and the boys.

Cheers

Paul