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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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non payment of spousal maintenance

  • maryjane59
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28 Sep 12 #358435 by maryjane59
Topic started by maryjane59
Hi
Can anyone advise me which route to take please.
Ex should have started to pay SM 8 months ago but within a few months he had left his job (with a big redundancy) and gone self employed as a business consultant contractor.
I know he has been working all this time but has not paid me any money and stopped paying CSA too.
Not sure of my options to enforce SM payments and to recoup arrears.
1. Do I register the court order in magistrates court or
2. Take back to county court for enforcement?
3. Do I try to get a lump sum settlement - I know he had a big redundancy payout 8 months ago and lives in a 300k+ house with small mortgage
4. Do i apply to county court for charging order
I know he is working on a day rate of £750 to £1,000 and has no office he works either at home or on site of who he''s working for.
He says I won''t get a penny of his money but I feel I have to try to get at least some of what the Judge ordered at the Final hearing.
If I register it in the Magistrates will he then still not pay anything and ask for a variation at the county court now he''s had a change of circumstance and self employed.
Could I end up having to pay all these costs and get SM stopped.
Really worried as what to as am getting further in to debt and it doesn''t seem right that he leads this affluent lifestyle and has completely disregarded the court order.
Any advice re which court and what to do would be greatly appreciated. Thanks:(

  • LittleMrMike
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29 Sep 12 #358442 by LittleMrMike
Reply from LittleMrMike
Oh dear, I have just answered another post and given some discouraging advice.

It is obviously not uncommon in these difficult times for payers of SM to lose their jobs.

In such a case, if the payer of SM becomes redundant, he cannot pay money he does not have, and the advice would be to apply for a variation, and do it without delay.

It may sometimes be that it would be reasonable that he should share part of his redundancy package, especially if part of it consists of wages in lieu of notice.

I suppose in an ideal world you would get your heads together and try and negotiate a revised arrangement. The fact is that many people just stop paying altogether.

So yes, any attempt by you to enforce would in all probability be met by an application on his part to vary the CM and the SM, and whether it succeeds or not depends entirely on the facts. But you are advised not to allow arrears to build up because it can be hard to enforce arrears which are more than 12 months old.

One piece of advice which is always useful is to have an urgent review of your benefits, and do not delay as benefits cannot normally be backdated. My textbook only tells you how to enforce and doesn''t give this practical advice, but it can be a life saver. Any CAB should help here.

In your particular case, it does appear that you have some arrows in your quiver, but there is one fact which is inescapable. Where a payer of maintenance loses his job, that in most cases is a fundamental change of circumstances calling for some form of re-negotiation, and for you to expect that matters will carry on as though nothing has happened is usually ( though not necessarily ) unrealistic.

Yes, could could register in a Family Proceedings Court, and on the face of it this might be a sensible thing for you to do.

The other option is for you to issue a notice of application accompanied by a statemnent which shows the arrears, how the arrears have been arrived at and verified by a statement of truth. This will order your ex to attend Court for questioning.

However, you must understand I am a private individual now and from everything you say, this sounds as if it could get messy, and some legal advice would be helpful.

LMM

  • Fiona
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29 Sep 12 #358492 by Fiona
Reply from Fiona
I agree with LMM, it''s worth taking legal advice from someone who is qualified and has sight of the documents in a case like this. Courts tend to take the view that a payer of maintenance should apply to vary an order rather than unilaterally alter the amount they pay.

Of course if someone loses their job and doesn''t have the income they can''t pay maintenance but it seems in this case you are saying your ex has become self employed. The problem with this is that on paper when any expenses and concessions are deducted your ex may not have a great deal of income left with which to pay maintenance if he applies for a variation.

That wouldn''t necessarily prevent arrears ultimately being enforced but it means that applying for an arrestment of pay, or whatever it''s called in England & Wales, won''t be appropriate because there is no employer to make the deductions. A solicitor can tell you where you stand and what the other options are in your circumstances.

The courts can award costs for enforcement, although it''s unlikely all the costs will be re-couped. Under the Family Procedure Rules 2010 the starting point is now that each party pays there own costs in variation proceedings however as usual the court can make a costs order if someone doesn''t comply to the rules and procedures, causes unnecessary hearings etc.

Hope that helps. :)

  • maryjane59
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29 Sep 12 #358501 by maryjane59
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Hi

Thanks for your advice. I know my ex is earning more self employed than he was when he was employed. However I also realise that he would show on paper that he was earning very little. Surely the Judge''s see through this.
I think that I will follow the route of registering the order in the Magistrates court and see what happens. I''m not getting anything at the moment so I have nothing to lose do I?

  • maryjane59
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29 Sep 12 #358505 by maryjane59
Reply from maryjane59
Hi Fiona

Thanks for that.
I know that he is earning more money being self employed.
Surely the Judge''s see this all the time where ex''s show on paper there not earning hardly anything. Surely they wouldn''t believe that someone takes a redundancy and then goes back to the same company self employed and is hardly earning anything!
Anyway I''m not getting anything at the moment so anything would be an improvement.
If I register at the magistrates how do they enforce payments? what is the procedure?
I would really appreciate whether it is best to go to magistrates or stay in county court - but what then do I apply for?
I''m finding it increasingly difficult to cope and becoming very depressed. I don''t feel that I have anyone to turn to and have no money for solicitors.
I feel so let down by the Legal system. It cost a lot of money to get to the final hearing but following it my ex stated he had no intention of paying SM or CSA. What was the point of going through all of that when nothing seems to be able to be enforced.
I would say to any women going through divorce just take whatever your ex decides he will allow you to have as even if matters go to court the person with the purse strings will always get his way - court order or not!

  • jar of hearts
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29 Sep 12 #358506 by jar of hearts
Reply from jar of hearts
Maryjane I am afraid I have no advice to add for you, but I am offering support and a little shakily admitting that I think I might be starting on the same journey as you. I should have started receiving SM on 1st August, but haven''t received even a part payment. I had to fight for the child maintenance promised and in the end had to accept a lower amount collected through CSA and knew the same would happen with SM. I tried to point this out at the final hearing and avoid being awarded maintenance because I knew it would simply be a way of my control freak, abusive ex keeping a hold on my life and twisting the knife in my side whenever he felt like it. But the judge unfortunately felt he knew best and insisted that a middle-aged woman with no career needed maintenance and gave a joint lives order (I think, since the hearing was in May but ex wouldn''t agree the wording or terms of the order and the judge has just heard the matter again last week without us present to decide on the wording of the final order and seal it through the court) which I really didn''t want. However, as the initial settlement was therefore smaller I do now need the maintenance to keep my children housed, clothed and fed. Of course that gives ex a chance to deprive me and our children of that money whilst he lives a life of luxury appartments, trips abroad, going out, socialising etc. Our children felt a Sun holiday to a caravan for four days in early April was an exciting and wonderful thing as it was their first holiday in seven years. They are now saving hard in the hope that money from part time jobs, birthdays etc might give us a week away in a couple of years time.

SM is a bit of a swear word in our house!!!

  • maryjane59
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29 Sep 12 #358508 by maryjane59
Reply from maryjane59
Hi

Good to hear from you. It''s a bit of a sorry state isn''t it? and I''m sure there must be countless other women out there stuck in the same situation as us.
I really wanted a lump sum settlement rather than SM and there was enough money to do it too but the Judge decided on SM.
It amazes me why they do this surely they must be aware of the difficulties and stress it causes. How many ex''s are willingly going to pay?
I really feel that I need to do something though. It''s just not right that he can get away with it!
Best of luck with yours. How are you going to get payments enforced?

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