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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.

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.


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Child maintenance - gap year

  • bluedonkey
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21 Sep 12 #357034 by bluedonkey
Topic started by bluedonkey
I have a court Consent Order from 2001 that states until 17 or end of full time education.

It does not say anything about tertiary education. I have not seen my wife or 2 kids since 2003, but have paid maintenance as specified by the order.

My son left school in July and was 18 at the same time, so I stopped payments for him.

Today I just got a letter from my ex saying she will write to inform me when he re-commences full time education after his gap year next year. Apparently he plans to become a doctor.

Of course she will argue that FTE includes uni and I will argue that it doesn''t. It''s unlikely that we will ever agree, so it''s most likely she will file for arrears when I do not start again and that it will be totally up to a judge on the day to decide who is right.

However, if I do have to keep paying for uni, do I have to keep paying to my ex rather than directly to my son.

Any advice on strategy or anyone with similar experience.

Things are a little complicated as I am paying for my other son, but have just lots my job...

  • LittleMrMike
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21 Sep 12 #357035 by LittleMrMike
Reply from LittleMrMike
Oh dear.
We do get this kind of thing on wiki, and it illustrates the vital need for precision as to
How long the parents intend to support their child through tertiary education ; and
making sure that the agreement/Consent Order gives effect to the common intention.
'' Full time education '' is a term wide enough to include, for example, postgraduate degrees. But I think most courts would take the view that parents should not really be expected to support their children beyond the first degree. For the mega rich, I suppose, it might be different.
The definition of full time edication for CSA purposes specifically excludes advanced education.
Your post also raises another issue which deserves a wider airing. Should maintenance orders in favour of an adult specify that maintenance should be paid to the mother ?
That is clearly sensible when the children are minors, but for adults we do get cases where people have alleged, rightly or wrongly, that the mother is not passing on the full maintenance to the adult child.
So, what do you do ?
You have at least a decent argument that, if the child has left full time education, the order has lapsed and cannot be revived. Certainly this is true on general principle ; for example, an order which expires at the end of a fixed term can sometimes be extended, but the application must be made before the terminal date ; if this is not done the order lapses and cannot be revived. After all, it would be contrary to reason to suppose that if your son for example got a full time job and then threw it up to go back to uni, the maintenance order could revive.
Secondly, if you have lost your job, surely you couldn''t pay the order anyway ? An order for maintenance is always variable on the grounds of changed circumstances. If you are making an application for variation, why not go one step further and ask that any maintenance in future is paid to the child ?
But it really boils down to this ; what do you, as a parent, want to do ?
LMM

  • WYSPECIAL
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21 Sep 12 #357044 by WYSPECIAL
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Do you just pay CM by Consent Order? Assuming there is no global figure that will kick in why not just use CSA instead before they stop taking new cases?

It would take into account your current circumstances and get rid of the issue of the elder son having finished education, albeit temporarily.

  • Bluesauce
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22 Sep 12 #357271 by Bluesauce
Reply from Bluesauce
what do you mean by "stop taking new cases"?

This is intriguing!!

  • Fiona
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22 Sep 12 #357303 by Fiona
Reply from Fiona
Since March 2003 the courts normally have no jurisdiction to impose an order for child maintenance. A child maintenance agreement can be included in a Consent Order but a judge cannot impose a ruling when the CSA has jurisdiction. There is a rule that after 12 months of the date of the order either parent can apply to the CSA for an assessment and the consent order will cease to have any effect in respect of child maintenance.

The problem is In this particular case the CSA can''t and never could have been involved. First of all the child is no longer in non-advanced education, but the main reason is the order predates March 2003 so the courts retain jurisdiction and not the CSA.

20 years ago fewer children went into higher education and the CSA, uni fees and student loans didn''t exist. It was usual for child maintenance orders to cease at the end of "full time education." The number of children going to university increased and uni fees and student loans were introduced which meant that "full time education" has become ambiguous.

If you have legal representation the costs of going to court for a judicial interpretation of "full time education" or a variation can outweigh the cost of paying CM for 3 or 4 years. It is therefore in both parties interests to negotiate an agreement perhaps using a mediator. There is no point in your ex taking you to court if you have lost your job, she can''t get blood from a stone and perhaps she would agree to you paying your son directly once you start working again rather than pay huge legal bills. If you can reach agreement just make sure that it is legally documented.

  • bluedonkey
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25 Sep 12 #357760 by bluedonkey
Reply from bluedonkey
WYSPECIAL wrote:

Do you just pay CM by Consent Order? Assuming there is no global figure that will kick in why not just use CSA instead before they stop taking new cases?

My court order is 2001, so prior to 2003. That means I cannot use the CSA.

  • bluedonkey
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25 Sep 12 #357762 by bluedonkey
Reply from bluedonkey
LittleMrMike wrote:

Oh dear.
We do get this kind of thing on wiki, and it illustrates the vital need for precision

Every time I look at that clause in the order I ask myself why on earth I let the lawyers introduce ambiguity into a legal document.

Should maintenance orders in favour of an adult specify that maintenance should be paid to the mother ?

It makes logical sense that the "child" maintenance be paid to the adult child, however, I imagine both sides could be argued effectively.

You have at least a decent argument that, if the child has left full time education, the order has lapsed and cannot be revived.

Secondly, if you have lost your job, surely you couldn''t pay the order anyway ? An order for maintenance is always variable on the grounds of changed circumstances. If you are making an application for variation, why not go one step further and ask that any maintenance in future is paid to the child ?
But it really boils down to this ; what do you, as a parent, want to do ?

Good points. I plan to write saying that the order has run its course, but if/when my son goes to uni, I am happy to consider funding him directly depending on my financial circumstances at the time. I see no reason why I should pay anything directly into my ex''s joint bank account with her husband for my adult child.

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