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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.

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capitalisation of spousal maintenance

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08 May 12 #329315 by maryjane59
Topic started by maryjane59
My ex was ordered to pay spousal maintenance at the final hearing for 6 years with a possibility to extend. He has refused to pay anything and 6 months on has purposely been made redundant just as I was to get an attachment of earnings order.
He has had a sizeable redundancy payment and I would like to try and get a capitalisation of maintenance payments as he has no intention of ever paying spousal maintenance. I can''t afford solicitors again. Can someone please advise me how to go about getting this case back to court? What forms I will need to complete? Are there any books out there that might help me?
CSA payments have stopped too and I understand he will become self employed and show that he isn''t making any money and so avoid paying for his daughter. I don''t think there is anything I can do about this.
Any help or advice would be much appreciated. Thank you

  • LittleMrMike
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09 May 12 #329347 by LittleMrMike
Reply from LittleMrMike
Capitalisation of spousal maintenance is an issue which, as a payer, I wrestled with for some time, and I eventually came to the conclusion that on the whole, continuing to pay was the lesser of two evils.
But in your case, there is something which. regrettably, you must face. A Court can''t order a lump sum if the payer does not have the means to pay it.
The other is that, if your ex has been made redundant, he will not be able to afford much in the way of maintenance. We do get this kind of situation, and my advice is
(a) you need to analyse the make up of the redundancy package. It will probably include wages in lieu of notice or compensation for loss of future earnings and to that extent he should by rights at least pay some maintenance out of the earnings element.
(b) it may well be reasonable to offer some payment to help to adjust to the loss of maintenance ; but this, at best, is a sort of parachute payment designed to soften the blow for both parties.
We sometimes do encounter men who say they will give up their jobs rather than pay maintenance and I always tell them, don''t be so ****** daft. You are saying your ex gave up work to avoid SM, but to give up your job voluntarily, in a recession, is certifiable lunacy. I don''t believe that anyone in his right mind would do that.
Unless your ex has very substantial assets, I do not advise you to go down the capitalisation route. As I said, I think it''s reasonable that you should have some payment out of the redundancy package. If you can''t negotiate that, then by all means go for enforcement. And I think it is essential that you should immediately review your social security benefits.
I am sorry, I know this is hard advice. But if you try for capitalisation, the odds, in my view, are heavily against success.
LMM

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09 May 12 #329508 by maryjane59
Reply from maryjane59
Hi
Thanks for your advice. He said after the final hearing that I wouldn''t get a penny of his cash and that he would rather give up work than pay me a penny!
I believe he has negotiated a good redundancy package. I understand they wanted rid of him - but it''s difficult to sack someone.
Can you please offer some advice on what to do now.
I will speak to benefits but can you please advise on how I go about taking this matter back to court.
Can I ask for the Judge to make a decision whether there is some maintenance that can be paid or a capitalisation? What forms will I need to apply?
How do I go about getting information on his finances? do I need different forms or would it be done in the same application
Thank you for your help.

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10 May 12 #329850 by LittleMrMike
Reply from LittleMrMike
Before you can consider possible enforcement action, you must consider this : getting a judgment is one thing ; but it does not, of itself, produce the money.

The methods of enforcement open to you are :

Attachment of earnings. In other words his employers can deduct a given sum and pay it to you.
Warrant of execution - not chopping his head off ( ! ) but seizing his goods - which depends on what goods he has to take.
Third party debt order - if someone owes your ex something he can be ordered to pay you direct. This is useful when he has bank or savings accounts.
Charging order, to put a charge on property he owns - which assumes he has property which you can attack.
Imprisonment - very much a last resort and it doesn''t produce any cash.

LMM

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10 May 12 #329869 by maryjane59
Reply from maryjane59
Well thank you Mr Mike

But he''s not employed so can''t do attachment of earnings.
Would very much like to chop off his head - pity it''s not an option!!
He has got bank and savings accounts and a house of £300k with small mortgage.
Could I request an order to obtain information EX 324?

Or do you think I should try to get payments through a magistrates court?

Surely the Judges see through someone who had a £100+k job and then says he''s earning nothing self employed so can''t pay SM or CSA

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11 May 12 #329886 by LittleMrMike
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Well, yes, attachment of earnings isn''t going to be much use. Of course, self employed people can, and do, pay maintenance.

Capitalisation - well, as I said, this is an issue I have struggled with. As far as I''m concerned it''s largely academic because I don''t pay SM any more. But if your order is for joint lives, £10,000 is plain ridiculous and should be rejected out of hand.

Yes, a judge will see through it all right, they come across it all the time. Personally I think giving up one''s job in a recession is certifiable lunacy, but there it is.

However, capitalisation can sometimes be a weapon which can be used where a husband with the means to pay is deliberately avoiding payment, and has the means to pay a capital sum. Your case may be an example of the sort of case where capitalisation might just be appropriate. In your case I think a charging order, or a third party debt order, or both, may be a distinct possibility.

You are advised not to wait too long because normally leave of the Court is required to enforce arrears which are more than 12 months old.

My advice is to try and find a solicitor who will offer you half an hour''s free advice. It is possible to apply to the Court for your husband to be examined as to his means.

As to costs - well, yes, but normally, if you sue for a debt, and the debt is due and payable, the debtor pays the costs, not the creditor ; on the basis that if the debt had been paid, the enforcement would not have been necessary.

My feeling is that a charging order is certainly worth considering, together with registering a pending action against the property to prevent avoiding action, is worth looking at. I think at least a solicitor will be able to confirm whether he agrees with what I suggest. Costs are only a problem if you have to pay them.

LMM

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11 May 12 #329887 by LittleMrMike
Reply from LittleMrMike
Well, yes, attachment of earnings isn''t going to be much use. Of course, self employed people can, and do, pay maintenance.

Capitalisation - well, as I said, this is an issue I have struggled with. As far as I''m concerned it''s largely academic because I don''t pay SM any more. But if your order is for joint lives, £10,000 is plain ridiculous and should be rejected out of hand.

Yes, a judge will see through it all right, they come across it all the time. Personally I think giving up one''s job in a recession is certifiable lunacy, but there it is.

However, capitalisation can sometimes be a weapon which can be used where a husband with the means to pay is deliberately avoiding payment, and has the means to pay a capital sum. Your case may be an example of the sort of case where capitalisation might just be appropriate. In your case I think a charging order, or a third party debt order, or both, may be a distinct possibility.

You are advised not to wait too long because normally leave of the Court is required to enforce arrears which are more than 12 months old.

My advice is to try and find a solicitor who will offer you half an hour''s free advice. It is possible to apply to the Court for your husband to be examined as to his means.

As to costs - well, yes, but normally, if you sue for a debt, and the debt is due and payable, the debtor pays the costs, not the creditor ; on the basis that if the debt had been paid, the enforcement would not have been necessary.

My feeling is that a charging order is certainly worth considering, together with registering a pending action against the property to prevent avoiding action, is worth looking at. I think at least a solicitor will be able to confirm whether he agrees with what I suggest. Costs are only a problem if you have to pay them.

LMM

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