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Application to Vary : Section 28(1a) Bar

  • DivorceAgain
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1 year 1 month ago #507202 by DivorceAgain
Application to Vary : Section 28(1a) Bar was created by DivorceAgain
I divorced a few years ago, and my final order was made in apr 2016.

my ex got
4 flats : at equity 260K
the Mat home : at equity 150K
a pension : 80K.

I got
2 flats : at equity 90K
overseas prop : at equity 45K
a pension : 90K

My ex also gets 2295 global maintenance with a section 28(1A) \"Bar\" with the last payment in June 2026. The maintenance auto adjusts against child maintenance so that the global maintenance comes out at 27540 pa. What the court considered to be her shortfall after taking into account other income. As part of the judgement court agreed, that the ex would not be able to work until 2020, when my younger son went to 6th Form.

I have 2 children with my ex, now 18 and 15.

I am a contractor, but have found work to be vary scarce over the last year or so, and I'm now running out of savings, and have not been able to get a contract in the last 5 months.

My contracting rate comes out at about 10K pm,
My expenses in order are
* 3.5K tax.
* 2.3K maintenance
* 1.4K rent
* 0.7K food.
* 0.5K work travel

* 1.5K in other expenses... (rates, water, company accounts, car expenses, etc)
I cannot afford a pension or savings.

Part of my problem is that because the maintenance payments are so high, I have no ability to negotiate a rate that is competitive, and so I am losing out to contractors who have lower living expenses. And I'm not at all sure that the contract market will improve over the next year or so, and indeed the new IR35 rules for private sector are likely to kick in next year, making things even worse. And my ex isn't willing to adjust her maintenance proportionately. I need to reduce my income by 2K per month, and she isn't willing to adjust her maintenance by more than 100 a month. I would like to get a permanent job. I have offers in the 70K region. And these are good jobs at good salaries, but it's impossible for me to accept any of them without first getting my ex to adjust her maintenance.

I now rent with my partner close to my children, but my partner and I are having to contemplate moving in with my partner's parents, as we cannot pay the rent or move into either of the properties I own if we have no income.

During the hearing in 2016, my ex went to great lengths explaining all the costs she has the would require a 6000 monthly income. The court awarded her needs at 50K a year. Since then she has not used the money in the way she volunteered (car for my daughter, university savings, etc), but has instead remortgaged all her properties on capital repayment mortgages, and put a 80K extension onto her house, which she is paying off very quickly. She also said she wasn't able to get any work, and the court agreed. But she was was working part time jobs within the month, a minimum of 30 hrs. There are also the small things, like refusing to pay for my son's drum lessons, or not buying clothes, forcing me to see my kids in too small clothes, or buy them something appropriate myself. Not sure the last paragraph is is relevant to this at all, but I just feel bitter about it, and it's nice to just say it out.

I have approached my ex, and she has said she can adjust her maintenance by about 100-200 a month for a few months, but only if I agree the full amount to be repaid by the end of Jun 2026, or subsequent payments made.

So the crux:

I am considering making an application to vary in the following format.

1) I would like to reduce the term of the order from 2026 to Mar 2022 when my son turns 18.
2) I would then like to transfer the remaining 2 flats to my ex. She would have the assets and the rental, in lieu of the remaining maintenance until Mar 2022. She can sell the flats, or keep them and take the rental longer term.

I am not sure what else to put into the variation application.

I must point out that my divorce was extremely bad, and the financial order went to appeal. My ex does not just give in, she is ruthless, and lies in court. And I end up looking like a liar and a fool. My ex had originally managed to get an order based on an enormous daily contract rate, well over 40% I am able to get, and a calculation that used 280 working days. I spent 30K appealing this order, and while the current order is bad, it's still workable if contracts had remained stable until 2026. But they have not. The main point here being. Any application I make I will have a very strong willed and angry person fighting it, and we will both be litigants in person.

Do you good people think this is a stupid application?

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  • jjd99
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7 months 1 week ago #510109 by jjd99
Hi Sounds, very similar to me. Same sort of situation. Did you manage to do anything about it?

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  • Deborah66
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7 months 1 week ago #510115 by Deborah66
Replied by Deborah66 on topic Re:Application to Vary : Section 28(1a) Bar
Hi Divorce Again

I would suggest you look at an application to vary the maintenance amount. You say your ex lies, but if your circumstances are as you say and you cannot afford to live and rent, then prove it, obtain independent evidence of the current market and difficulties securing contracts, your ex cannot argue against independent evidence. Your circumstances have changed, support your case with as much evidence to support your position to refute her arguments. Keep this to hand should it be needed

Also, initially I would set out your position in a clear and articulated letter, formally asking for what you want, (include reducing global maintenance) What would be your figure to vary the global maintenance amount to? Consider sending it \"without prejudice\" save as to costs, so if you go back to court, and the court varys the order in your favour, you could ask for a costs order.

Hope that is some food for thought.

Deborah

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  • DivorceAgain
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7 months 1 week ago #510165 by DivorceAgain
Replied by DivorceAgain on topic Re:Application to Vary : Section 28(1a) Bar
I applied for capitalization. With a reduced amount on the basis that IR35 was going to ruin me.

The courts response put simply was.. Until you are ruined we can't help you.
Come to us when your income is actually less, and you can't actually make your payments.
But who can wait for a court when it takes 3 months for an initial hearing???

The court was sympathetic, and understood I was trying to do the right thing, but says that you can't make an application based on a speculative future position.

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7 months 1 week ago #510170 by DivorceAgain
Replied by DivorceAgain on topic Re:Application to Vary : Section 28(1a) Bar
Hi Deborah,
Thanks for your response.

I have subsequently been to court with an application to capitalize.
The court was sympathetic to a reduction, but insisted it could not help based on a future speculative position.
The application meant I could get a full disclosure, which having done. I am at a loss as to what to do. My ex has leveraged my maintenance to secure more debt.

When I look at her finances, I can only pray that she has a plan. Just on her home her mortgage repayments are now 90% of the maintenance she gets. Truly I want to cry when I look at the debt.

Clearly my maintenance hasn't been used for the immediate benefit of my children. One could say that they'll inherit something later in life, but with her mountain of debt, I can't see how.

My problem isn't that I cannot afford to live now. It's that I won't be able to afford to live once IR35 legislation is enforced. The court has kindly offered another hearing later next year. So I will be adjusting that date to the 1st or May or the next available date.

But what I'm really trying to do is be responsible, set myself up so that I don't have to be in debt, and I don't have to choose between feeding my partner and little girl, and paying my maintenance.

Unfortunately my ex has set herself up with leveraged debt, and no margin for emergencies.

I can't see any way for this not to turn out bad. The problem is one of financial prudence now.

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  • jjd99
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7 months 1 week ago #510174 by jjd99
Hi,

Yes, IR35 could be a difficultly I agree. And I can well believe the court said come back when you are in difficulty. It seems to me that even the CMS work on a presumptive prior earnings. As we well know the earnings we have are very much based on the here and now. If you are not working you are not earning. And not paying puts you at odds with the order in place. Catch 22. You need to earn to pay the order, but if you don't earn you will be done for breaching said order. In my case I was put into large debt by the courts findings on the basis I could work. They then said I could work all workdays at my daily rate. They left no room for expenses or holidays or sickness. They also had me pay off all debts run up after [url=Resources/Library/Cohabitation-and-Separation_s33_m1852.html ]separation[/url], All CGT 120k, and a lump sum 60k to my Ex along with life time espousal maintenance. All based on lies. rather than divorce us, the court has put me in a binding to my Ex for life and IMHO worse than being married to them. I now find possibly like you, that work is short and struggling to keep it going. Capital is starting to dwindle and I have had to put some money into the pot from my pension which was already halved with my ex. I am keeping the rejection letters from the agencies or lack thereof. But you know how it is, often agencies will not return to say why. My issue now, is how long to wait before pressing the button on going back to court. The ex has refused point blankly to mediate and take a cut onboard. My other worry is that the court will take my property back into the fold to try and capitalize future spousal payments if I return to court. Has anyone every had their sole property sold up to pay for maintenance issues after getting it as part of the original capital split?

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7 months 1 week ago #510177 by DivorceAgain
Replied by DivorceAgain on topic Re:Application to Vary : Section 28(1a) Bar
Sounds so familiar. I am about to sell all my assets, and give up all my savings so that I can pay off my ex, and then at least I am able to earn a livable wage, and have a normal life.
But I'll be starting from scratch.
Good luck

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