A well respected, award winning social enterprise
Volunteer run - Government and charity funded
We help 50,000 people a year through divorce

01202 805020

Lines open: Monday to Friday 9am-5pm
Call for FREE expert advice & service info


What are we each entitled to in our divorce settlement?

What does the law say about how to split the house, how to share pensions and other assets, and how much maintenance is payable.

What steps can we take to reach a fair agreement?

The four basic steps to reaching an agreement on divorce finances are: disclosure, getting advice, negotiating and implementing a Consent Order.

What is a Consent Order and why do we need one?

A Consent Order is a legally binding document that finalises a divorcing couple's agreement on property, pensions and other assets.


Spousal maintenance - periodical payment reduction

  • tallyho247
  • tallyho247's Avatar Posted by
  • New Member
  • New Member
More
13 May 12 #330256 by tallyho247
Topic started by tallyho247
Hello,

can anyone tell me the answer to this...

I am a single working mum with 2 children 5 & 9 years old. Divorced 2 years ago and ex-husband in a Consent Order agreed to £300 pcm spousal maintenance (periodical payments)and basic csa paid. he sees them alternate weekends so gets a reduction on csa.

Our divorce was after a years separation where unofficially was co-habiting with his now fiance. His form E stated he lived alone etc. I couldnt afford or could be bothered with the expense of showing anything other!

His fiance is due to have a baby next month. She is also giving up work (no other kids,professional woman) to stay at home (lucky her!)

He has told me that he wants to stop paying spousal maintenance as he now has additional costs (ie supporting new baby and her)

It was agreed re my spousal maintenance as this was what I needed to keep a roof over the kids heads until they are 16 years old. The spousal maintenance, csa and SM is all I have coming in. Without the SM we would be struggling. And child benefit.

The csa will now be reduced due to his new child.

He has the same income as he always had.

Can he get the SM reduced /stopped?

I would really like to hear from anyone who has had a similar experience. I can not get legal aid so cant afford court.:(

  • Fiona
  • Fiona's Avatar
  • Platinum Member
  • Platinum Member
More
13 May 12 #330263 by Fiona
Reply from Fiona
He could apply to court to vary SM and the court would consider both parties current financial position. However, there is always a risk that an application to decrease SM results in an increase and the legal costs are significant which may deter someone from making an application.

If he did apply to vary it''s worth consulting a solicitor to find out if the application is likely to be successful in which case negotiating an agreement could cut your losses.

  • dukey
  • dukey's Avatar
  • Moderator
  • Moderator
More
13 May 12 #330264 by dukey
Reply from dukey
I have limited court experience though i have in the past helped people who cannot afford solicitors in court, most of the hearing i have been involved in are those where a guy is asking for a reduction or discharge from SM, the reaction of judges thus far is always the same, the responsibility is to the first family and this obligation is not negated by choices made after separation or divorce.

The only way he can have a reduction is if his circumstances have changed beyond his control, his wage drops, ill health, unemployment.

He must pay until a trigger event or a further order of court, so he will need to apply to vary in the first instance, then a judge or magistrate will consider the matter.

Thus far of the five cases i have tried to help with the judges have always enforced the orders because the changes in circumstances were by choice, one guy bought a more expensive house with a higher mortgage, one was paying much more into his pension, another had a baby on the way and said the wedding was going to be expensive, all were ordered to pay as per the order.

Some judges seem to listen at length others including some magistrates dismiss the application with haste, the longest hearing lasted around an hour, the shortest less than ten minutes.

So he cannot stop paying unless you or court agree, he must only stop paying if the order is discharged, if he does you can apply to enforce the terms of the order, you don`t need a solicitor for this if you can`t afford one, if it does become an issue there are plenty of wiki members who can help you enforce this yourself, these include some kind lawyers who help advise members here free of charge.

  • Fiona
  • Fiona's Avatar
  • Platinum Member
  • Platinum Member
More
13 May 12 #330275 by Fiona
Reply from Fiona
I agree with Dukey, generally the courts will enforce any arrears of SM and the first family have priority over the second family. However, it isn''t uncommon for someone facing enforcement proceedings to apply for a variation or your ex might apply for a variation rather than not comply with the order.

If SM was agreed in a Consent Order it may have been more generous than a court would have ordered so when the finances are reviewed there can be a decrease. That is less likely if both parties took legal advice. Although the first family has "priority" the second family is an "obligation " and the courts recognise people are entitled to move on and start new families so it''s a balancing act. Also in practice the judges in different areas can view matters differently.

Anyway the bottom line for now is the order needs to be complied with unless there is an application to vary and as Dukey says it''s possible for you yourself to apply to court to enforce any arrears, although the threat of a solicitor and an order to pay your legal costs sometimes resolves the issue with less hassle more quickly.

  • tallyho247
  • tallyho247's Avatar Posted by
  • New Member
  • New Member
More
13 May 12 #330283 by tallyho247
Reply from tallyho247
whew! Thank you for your responses, i''m not panicking now! Fiona, the CO was the result of many letters between solicitors and only then this was agreed.

Re a variation upwards, when the amount was agreed I was entitled to tax credits but since the threshold was drastically lowered, i no longer get those. The reason why I put in about him completing the form E ''as a single man'' and not as he was, ie cohabiting is that he clearly had more of a disposable income than he stated as bills etc were shared. However, as I also put, I simply couldnt be bothered with fighting it out, so kind of took the money and ran!

However, should he apply for a variation, would him cohabiting be worth putting to him as a possibility that going through the court MAY result in a variation upward (what Im trying to say is that it might be worth pointing out to him he may lose due to this and the fact I no longer get tax credits and therefore to save everyone time, stress and money to leave things as they are?) I would be happy to remain as it is, and i have no intention to ask for a variation and to go to court. I just want it to remain as it is and get on with life :):)

  • LittleMrMike
  • LittleMrMike's Avatar
  • Platinum Member
  • Platinum Member
More
13 May 12 #330287 by LittleMrMike
Reply from LittleMrMike
I think you have had a pretty good explanation of what is a pretty controversial area.

It should always be pointed out when considering a variation that the result may turn out the opposite of what was intended.

As Dukey says, there is some judges who will not accept a change of circumstances which arises out of a voluntary decision on the part of the payer as an excuse to reduce SM ; simply on the basis that, if this were permitted, there are many payers who would form new relationships just to spite their ex''s.

In your case there appear to be two changes of circumstances that could work in your favour - the new partner and the reduction in tax credits. That fact alone would suggest that it would be unwise for him to try.

But you are also advised that leave of the Court is required to enforce arrears more than 12 months old. There is a risk ( from your point of view ) that if you do not enforce, your ex might argue that, if you could mamage without SM, you didn''t need it.

Just a thought

LMM

Moderators: wikivorce teamrubytuesdaydukeyhadenoughnowTetsSheziLinda SheridanForsetiMitchumWhiteRoseLostboy67WYSPECIALBubblegum11