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.


Do you need help sorting out a fair financial settlement?

Our consultant service offers expert advice and support to help you reach agreement on a fair financial settlement quickly, and for less than a quarter of the cost of using a traditional high street solicitor.


Swapping SM for lump sum or pension share

  • ByeByeLove
  • ByeByeLove's Avatar Posted by
  • Senior Member
  • Senior Member
More
21 Mar 08 #17327 by ByeByeLove
Topic started by ByeByeLove
I was told that when you pay SM you are always under threat that you will be dragged back to court. Spouse can ask for more money, extended term or even swapping the SM for capital or pension? Is this right? And what are the rules?

  • loobyloo
  • loobyloo's Avatar
  • Visitor
  • Visitor
21 Mar 08 #17329 by loobyloo
Reply from loobyloo
bye byelove If you have judgement to state sm and amount payable it can be reviewed by courts
If you have Clean Break order then your x can not come back for more
perhaps post more of your situation and someone with expertise will hopefully answer you more specifically
looby

  • LittleMrMike
  • LittleMrMike's Avatar
  • Platinum Member
  • Platinum Member
More
21 Mar 08 #17333 by LittleMrMike
Reply from LittleMrMike
An order for spousal maintenance can always be varied up or down, on the grounds of changed circumstances. In practice,
it not always easy to judge the chances of such an application succeeding as couples drift apart and leave separate lives.

The Court will review the whole matter afresh so there is a risk that you can apply for an increase and get a reduction or vice versa.

Nowadays it is not at all uncommon for SM orders to be index linked. I can remember the time when husbands were routinely dragged through the Courts by their ex's asking for more. This doesn't seem to happen now and perhaps this is the reason.

It is possible for a SM order to be traded off for a lump sum payment, but of course it goes without saying the payer must have the means to make such a payment.

I'm afraid there are few rules except the section 25 criteria.

Mike 100468

  • attilladahun
  • attilladahun's Avatar
  • Platinum Member
  • Platinum Member
More
21 Mar 08 #17336 by attilladahun
Reply from attilladahun
In relation to Variations:

APPLICATIONS FOR VARIATIONS OF MAINTENANCE ORDERS.

There is a protocol which should be followed -this saves costs
See: 4.18.1 The procedure for variation applications is as set out in the. Ancillary Relief Rules
Link is here:
lawsociety.org.uk/documents/downloads/dynamic/flppart4.pdf

TACTICS

The strategy for a payer is often:-

To agree an automatic increase and if the payer is a "player" ie someone who earns alot or if likely to get rapid promotion the payment review linked to RPI index is the choice as the increases are modest [See 1st precedent]

Benefits

When one considers the potential costs of going through the whole ancillary relief process for the variation one can find the cost eats up 2-3 years maintenance increase.

An example of these type of order are:

Precedent 1

RPI self varying maintenance

On “the variation date” [which shall be on the date of the payment due in [month] [year] and at yearly intervals afterwards, the periodical payments set out in order [No.] [spousal periodical payments] and order [No.] [child periodical payments] will stand varied automatically.

The change in the payments shall be the [change][increase], if any, between the retail prices index for [month] [15 months before the date of the first variation,] which stands at [ . ] and the retail prices index for the month three months before the variation date.

ALTERNATIVE APPROACH

For say the recipient where it is expected the payer may get a substantial rise there is a different automatic formula where the rise is linked differently to the greater of the RPI or the payer's rise in income over the specified time usually last 15 months:

Alternative self-varying maintenance formula

The rates of periodical payments ordered under paragraph [ ] [and [ ]] of this order shall be varied upwards automatically with effect from the payment due on [date and month] in each year commencing on [ 20 ] by whichever shall be the lesser of the following:

1 the percentage by which the Retail Prices Index shall have increased between the date 15 months prior to the variation and the date 3 months prior thereto. It is recorded that the Retail Prices Index as at [date 15 months prior to date of first automatic variation] was
[ ]; or

2 the percentage by which the [Respondent’s] [Petitioner’s] total [earned] income after deduction of income tax and national insurance contributions shall have increased between the date 15 months prior to the variation and the date 3 months prior thereto. It is recorded that the [Respondent’s] [Petitioner’s] total income after deduction of income tax and national insurance contributions as at [date 15 months prior to date of first automatic variation] was £[ ]. It is agreed between the [Petitioner] [Respondent] and the [Respondent] [Petitioner] that a certificate from [ ] the auditors of [husbands employers] shall be sufficient evidence of the [Respondent’s] [Petitioner’s] total income and the income tax and national insurance contributions payable thereon for the purposes of this paragraph.

The relevant Statutory Provision dealing with maintenance variarion is s 31 MCA 1973.

  • ByeByeLove
  • ByeByeLove's Avatar Posted by
  • Senior Member
  • Senior Member
More
21 Mar 08 #17351 by ByeByeLove
Reply from ByeByeLove
Thanks, Mike
I assume that just because my earnings have increased substantially for whatever reason after divorce does not constitute a reason for increasing SM?

  • ByeByeLove
  • ByeByeLove's Avatar Posted by
  • Senior Member
  • Senior Member
More
21 Mar 08 #17354 by ByeByeLove
Reply from ByeByeLove
Thanks Attila.
Both options are acceptable if it makes it more unlikely for x to get back at me.
By the way, I used to be nick named Attila at school for playing football in defense and having a reputation for being a little uncompromising. :)

  • LittleMrMike
  • LittleMrMike's Avatar
  • Platinum Member
  • Platinum Member
More
21 Mar 08 #17361 by LittleMrMike
Reply from LittleMrMike
I'm afraid I can't discern any obvious reason why SM cannot increase if the payer's income increases, although that would be only one factor in the equation, as the recipient's income might also increase. In my case my ex got the benefit of a substantial inheritance which ( of course ) was not disclosed, but since your sins will find you out, a social worker who knew of this opened her trap to a care worker, who in turn opened HER trap to me and that was enough to enable me to track down the probate.

By the way I wondered if there was a typo in Attila's precedents, he talked about linking the rise to the GREATER of RPI or the payer's actual rise but in the precedent itself he talks about the LESSER - I suspect he meant the greater.

Personally I'd be reluctant to agree anything like that as it enables the recipient to pick and choose as to which method produces the more favourable result. I remember we had to endure the occasional pay freeze ' in the public interest ' which would have meant I would have had to pay extra maintenance although my salary was frozen.

Mike

Moderators: wikivorce teamrubytuesdaydukeyhadenoughnowTetsSheziLinda SheridanForsetiMitchumWhiteRoseLostboy67WYSPECIALBubblegum11