Should Spousal Maintenance Be Awarded In This Case

Hello everybody,

To get the background information on my 2 years plus ongoing divorce - please se my previous post:
www.wikivorce.com/divorce/Divorce-Advice...an-never.html#341835

A quick overview is:

Me and my wife are both in our thirties, we were together for 14 years and married for 7 of them. We also have 2 young children together and a three bedroom semi-detached house.

She has a new partner and a 9 month old baby with him. He has been living (full-time now) at the family matrimonial home for just under a year. Although this hasn''t been declared to social services and she is still claiming full benefits, including ones she shouldn''t.

June 2010 - wife files for divorce against me.

August 2010 - I figure out wife is in a relationship with another man - so do investigating and gather information.

September 2010 - I get assulted by new boyfriend and his family whilst I have one of my children in my arms - wife looks on feet away while incident happens only feet away, not even concerned for the safety or welfare of our child. I reliase there is no relationship between me and my wife anymore and I move out of the family home.

January 2011 - mediation starts

April 2011 - Wife announces she is pregnant at mediation meeting

July 2011 - We can''t come to an agreement over finances and mediation fails

September 2011 - we get a court date for December 2011.

November 2011 - Wife has new baby with her new partner.

December 2011 - Wife get''s court hearing adjourned to late January 2012.

January 2012 - A week before the court hearing the wife offers an out of court settlement. Our solicitors draw this up and get the court hearing stopped.

March 2012 - As court haven''t heard anything list new hearing just after easter 2012.

April 2012 - Wife sens in signed Consent Order

April 2012 - court can''t inforce order asife hasn''t supplied Statement of Fact.

May 2012 - Wife eventually sends in Statement of Fact only after being threatened with another court hearing and costs order against her.


In Brief our Consent Order that was drawn up agreed the following:

The children will continue to reside with my wife at the family matrimonial home.

My wife will get 60% equity of the property and I will get 40% equity. My wife needs to remortgage and buy me out of the mortgage.

I should be release from the mortgage and any claim to the house when she pays me my 40% equity.

We both keep our own independant pensions intact (no pension sharing orders)

She makes no Spousal Maintenance Claim

The Divorce is done on a ''Clean Break'' basis.


The court have at last assessed this and even though we both agreed to this agreement, the judge will not inforce it as the judge is suggesting that their should be a spousal maintenance claim in the wife''s favour.

My solicitors response to this is:

Further to our telephone conversation this morning, please find attached a copy of a letter I have now received from the Court. It would seem that the Judge has some concerns about approving the clean break settlement. In our local Courts in the North the Judges are keen to approve clean break settlements but it would seem this is not always the case in the South.

In circumstances where your wife has a new Partner, and you have already come to an arrangement as to the maintenance paid for the children, the provision the Judge has made does not seem necessary. Essentially what the Judge is suggesting is that you pay a nominal sum, for example 5p per year, to your wife so that she can apply to vary the Order for the children’s benefit in the future should her financial circumstances change. Such a provision would be limited until the children were 18.

I have contacted your wife’s solicitors and have asked them to contact the Court to explain that Sharon is now in a new relationship but in any event a separate agreement has been reached in relation to maintenance for the children, we will do the same. Unfortunately if the Judge will not accept this we may need to amend the Consent Order to include such a provision.

I don''t agree with paying spousal maintenance - as she has moved on and is living with her new partner (even though she hasn''t informed benefits yet), has been living with him on and off for just under 2 years and full-time now for almost 1 year.
They also have a new child together who is 9 months old.

Surely he is responsible for my wife now not me (I know they aren''t married and he isn''t her husband) as they have been together long enough now and have children together.

I have no quarms about paying maintenance for my children but object to paying her extra money for her upkeep - when she is already co-habiting with her new partner and has a new family with him.

Here is a brief overview of our earnings:

My Wife:
Per Month
Part Time Job: £982
Working Tax Credits: £550
child maintenance: £300
Child Benefits: £165

Total After Tax: £1997

**Plus her undisclossed partner earings of approx £2500 per month after tax **


My Earnings:
Per Month
Work: £1,464 (after tax and n.i.)
Income after child maintenance money deduction of £300: £1,164

When I pick my children up it is a 25 mile round trip each time/50 miles if you include the return trip. I also travel approximately 20 miles each way (40 in total) back and forth to work each day.So therefore a car is a necessity not a luxury.

I also have to have a mobile phone for my wife to contact me regarding anything to do with the children, again this is a necessity.

So by time you take the running costs of a motor vehicle, ie: tax. mot, insurance, maintenance and the biggest killer petrol costs.

My mobile phone bill and insurance.

Rent and Food bills I am already left with nothing or practically nothing.

So what I am worried about are the following:

If Spousal Maintenance is awarded and my wife decides to either pack up work or loses her job. Or when benefits find out about her fraudulant benefits claims and reduce the amount they pay her.

How can it be justified that I should be forced to pay her extra money when I can''t afford to live myself. It is hard enough as it is at the moment to scrape money together to take my children out or take them on holiday.

Surely I can''t be expected to borrow money from friends and family for the next 15 years and then get told to pay my wife some more - while she is already living the life of luxury.


I would greatly appreciate it if anybody could shed any light on if it is possible to stop this spousal allowance/maintenance being awarded to my wife.

Can I go to court and contest it before it is awarded and if so - what is the best course of action.

If however I am forced into paying it - does anybody know much I could be expected to pay if she claims for more money at a later date and what is the likeliness of it being awarded considering our circumstances.

Would and should her new partners earnings be taken into consideration, as they are co-habitting together and also have a child together.

I hope somebody has some helpful advice.

Thanks in advance.

Regards.

DoMenHaveRights

i got a clean break in south london area kids were 6 and 9.
try and get the clean break or else you have it hanging over your head that if you do do well you are worried she''ll come after you.but your current earnings no chance of anything being granted.

all the best
pete x

I''m not sure there is a great deal of choice if the judge won''t sign off the consent order. Cohabitants can''t make financial claims against each other. It''s common for some courts to insist on nominal maintenance when there are children so that they don''t suffer undue hardship if the cohabitation ends and the parent with the majority of care is unable to work because of redundancy or ill health.

A nominal amount of maintenance say £5 a year is awarded as insurance so the order can be varied later if appropriate. In practice a variation doesn''t happen that often. If your wife hit hard times she could apply for a variation and the court would look at both parties'' financial circumstances afresh to assess your wife''s need and your ability to pay.

On your current income it is extremely unlikely you would be deemed to have the ability to pay any SM no matter what your wife''s needs are. Of course if circumstances change in the meantime and you have large pay increases or win the lottery etc it would be different.

Hi
My uderstanding is that it is usual when there are children to have a nominal provision of SM typically at a low level which in practice is never paid.
SM is different to CM in that it depends on your ability to pay. Your income and outgoings are almost equal so there isn''t much to claim on.

LB

My husband''s ex receives a nominal maintenance of £1 pa. We are in the midlands and were told that this was standard (although bizarrely this was not enforced or even suggested in my own divorce!!??) Obviously we had concerns about potential future applications by the ex but my husband had little choice if he wanted to get the matter wrapped up. His ex was pregnant by her partner at the time of the agreement, and cohabiting, but she failed to disclose either of these circumstances until several months after the order was signed. We were told, however, that it would have made little difference as although it is termed spousal maintenance it is really there to protect the children.
We have been told now though, by our sol, that she has effectively blotted her copy-book by having another child. Her relationship with the father has ended but we have been told that it would be extremely unlikely, and amoral, for her to be able to claim a variation in future as this would amount to my husband having to contribute to raising another man''s child. The nominal order ends when their youngest, not her youngest, reaches 18.