Many people facing divorce who have relied on their spouses’ earnings – and do not have their own income streams – are understandably anxious about their future finances.  

Major income gaps between you and your ex may result in you receiving ongoing financial support, known as spousal maintenance, to prevent undue hardship.

This is particularly relevant when considering the well-being of any children who are caught up in the relationship breakdown – whose interests should always come first. 

What is spousal maintenance?

Spousal maintenance is a payment made to you by your ex as part of the financial settlement relating to your divorce.

Usually paid monthly, it can last for a defined period or, in increasingly rare cases, the rest of your life. As you do not have an income, you may be entitled to a maintenance claim to help manage your monthly outgoings. This is based on need and, in some cases, can be applied for as an emergency measure.  

How is the amount of spousal maintenance decided?

There is no set formula to calculate spousal maintenance. The sum and its duration can be settled through mutual agreement between you and your ex.

If you can’t agree, the Court can decide the amount to be paid and the length of time it will be paid. 

The first step is to establish whether there should be any spousal maintenance at all.

In every case the Court must consider the possibility of a clean break order – a financial order with no financial obligations between the two of you in the future.

This is also something which you will need to consider if you embark on alternatives to divorce which do not involve going to Court such as negotiation, mediation or collaborative family law.  

Only if a clean break is not appropriate immediately, can you move on to the next stage of determining the amount of spousal maintenance and its duration.

What happens if my situation changes?   

If your circumstances or those of you ex alter significantly after a spousal maintenance order has been made, either of you can apply to the Court to vary the terms of the order.

The Court will consider factors such as changes in income, employment status or financial needs to assess if a variation is appropriate.

Can my spousal maintenance be stopped?

Yes, your spousal maintenance will stop if you remarry or enter into a civil partnership or if either of you dies.

It will usually be paid for a period of time to enable you to adjust to financial independence or your financial needs are reduced, for example, when your children finish school or university, or leave home.

Is spousal maintenance the same as child maintenance?

No. Child maintenance is mandatory for both parents for children under sixteen and youngsters under twenty who are still in full time education. The amount payable is calculated in accordance with a set formula which is accessible online .  Most separated couples agree what should be paid using the calculator. If you are unable to agree then an application can be made to the Child Maintenance Service which then decides the amount.

For queries on spousal maintenance, child maintenance or any aspect of divorce and family law, call us at Leeds on 0113 246 0055, Harrogate on 01423 276104, or York on 01904 202550. Visit www.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

The post I’m divorcing and fear financial strain – what help can I get? appeared first on Jones Myers.

By Peter Jones, founder

A senior judge’s call for parents with valuable homes to be forced to pay more child support highlights a loophole in the system which is criticised as being unfair and does not put children’s interests first.

Since 2012, child maintenance payments have been based on income only, with assets not included in calculations by the Child Maintenance Service (CMS), which decides the rate. This means that people can live off their capital, declare a low income and pay minimal child support.

While Mr Justice Mostyn has said that the law is unjust and should be changed, in my opinion a more comprehensive solution would be to return child maintenance in matrimonial and non- matrimonial cases to the jurisdiction of the family court. The courts should be accessed through one uniform procedure, regardless of the parent’s matrimonial status.

Here judges have a wide discretion and would ensure that the family assets are shared to achieve fairness – with the first consideration being the welfare of any children.

This would also free up the CMS to concentrate on its other vital responsibilities such as pursuing parents who do not pay and enforcing child upkeep.

In addition, the Matrimonial Causes Act should be re-examined with a view to making it fit for purpose for today’s modern and evolving world.

Drafted forty years ago, it has been criticised for provoking conflict and confrontation. In 2013, retiring High Court judge Paul Coleridge aptly said: “The days of the gladiatorial wars of the titans are over. The dinosaurs have had their day.”

As members of Resolution, all Jones Myers family lawyers are prominent supporters of alternative dispute resolution – striving to resolve family disputes constructively, to try to avoid costly, public and stressful litigation.

Our approach encourages clients to co-operate and reach agreement wherever possible about dividing their assets and securing the future of their children, whose interests should be at heart of everything.

For more information about children’s issues or any aspect of family law, call Jones Myers at our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

The post Why the dinosaurs’ days are numbered in the current child support system appeared first on Jones Myers.

By Peter Jones, founder

A new report has prompted fresh concerns about the systems that are supposed to ensure children receive maintenance payments they are entitled to.

Family law charity, Gingerbread has claimed that loopholes in the Child Maintenance Service (CMS) allow non-UK residents to pay only part of their liabilities.

According to the charity which is urging the government to devise a new strategy to prevent payment avoidance, parents claim the CMS regularly ignores their concerns

While Gingerbread has recommended improved coordination between CMS and HM Revenue and Customs among measures the government should take, more robust and urgent action is needed for children to receive this much needed support.

Leaving decisions about who should pay what in the hands of organisations like CMS and its predecessor, the Child Support Agency (CSA) is a recipe for disaster – as the last 24 years have highlighted.

Only three months ago the National Audit Office revealed that the CMS had built up £93m of unpaid child support since it was established, in 2012.

This news was further compounded by the fact that the CSA had failed to collect nearly £3bn following its inception in 1993.

According to the Department for Work and Pensions 1.2 million people are owed money – with little of it ever likely to be paid.

The current system claims to encourage parents to come up with their own family-based arrangement. The stark reality, however, is that this system is unsympathetic and formulaic in its assessments and ineffective in its enforcement.

I believe that it is in the interests of both children and their parents for the courts to rule on maintenance payments as part of the separation agreement. The court’s ruling then needs to be supported by an enforcement system that is economical to run and financially accessible for parents.

After all, when the wellbeing of vulnerable children is at stake, we cannot afford – either financially or emotionally – to keep getting it so badly wrong.

For more information about any aspect of children’s law or family law call the team at Jones Myers on 0113 246 0055 or tweet us on @helpwithdivorce

The post More child maintenance loopholes reinforce why family courts should rule on payments appeared first on Jones Myers.

Invited back just seven weeks since his last appearance on BBC Radio Leeds ‘Legal Monday’ programme with popular broadcaster Richard Stead, Norman Taylor, one of our family law specialists, debunked divorce myths around some commonly used phrases.

‘Irreconcilable differences’ was a terminology which listeners – and Richard Stead himself – were surprised to learn is not a legal term in Britain.

Although frequently used in the United States as a ground for divorce when ‘A couple cannot and never will agree on certain, fundamental issues’, it is not one of the 5 grounds for divorce in the UK which Norman explained were adultery, unreasonable behaviour, desertion, two years apart, by agreement – and five years separation with no consent required.

Norman also explained that the widely used term common law wife or common law husband are not valid legal terms and do not give either party any legal rights or obligations should a couple separate.

Listeners called and texted questions on wide-ranging family law issues spanning tieing the knot abroad, the Child Maintenance Service, – and the rocketing rise in ‘sliver splitters’ –  older divorcees.

A listener sought advice on the validity of marriages in countries abroad. Norman advised that generally speaking, if the marriage is legally recognised in the country that it was entered into in, then it will also be recognised in the UK. He cautioned that there may be exceptions so it is worth double checking in advance the county in which you wish to tie the knot.

The programme also outlined that there may also be other considerations to take into account – for example, France requires couples to be a resident in the country for a month before celebrating a legal wedding ceremony.

Phone in queries also included a listener questioning her son’s options as a divorced father if he disagrees with a decision reached by the Child Maintenance Service (formally the Child Support Agency). Norman explained that the Child Maintenance Service operates an appeals procedure for those in this situation.

The issue of rising divorces among the over 60s was also discussed. Norman explained to listeners the key considerations including property, age, length of marriage, whether this is a second marriage – as well as changes to the pension reform – for those contemplating divorce to take on board. A Jones Myers article on the Saga website on this issue outlines why people in this situation should look before they leap and offers some salutary advice on staying together – or parting well.

You can listen back to the programme until 24^th May on BBC Radio Leeds if you missed it live.

If you have any comments, queries or concerns on any divorce related issue, leave a comment below, call the Jones Myers team on 0113 246 0055 or tweet us on @helpwithdivorce.

The post Jones Myers expert debunks divorce myths on a live BBC radio phone in appeared first on Jones Myers.

Former oil trader Michael Prest has hit the headlines after being given a four week suspended jail sentence for failing to pay his ex-wife maintenance worth £360,000.

The High Court ruled that the 53-year-old, said to be worth almost £40m, had “wilfully refused or neglected” to pay his former wife Yasmin – despite spending more than £250,000 on holidays and £12,000 on tickets for a Justin Bieber concert.

And Mr Prest’s excuse? In a letter read out to the court, he said he had “engaged in the process, had not shirked responsibilities” and had taken care of his children, adding “I have not killed anyone, nor have I committed any crime… I have simply slipped on the accident of life.”

Not surprisingly, these excuses did not impress the court. As Ms Prest’s lawyer said, “This is a particularly bad case of wilful default and deliberate non-compliance to pay maintenance for the children,” despite being ordered by the court in 2011 to pay his ex-wife a lump sum of £17.5 million and annual maintenance payments of £300,000 a year.

While I welcome Mr Justice Moylan’s ruling, because it shows the family court is determined to enforce its orders, I am aware that many divorcees in this situation do not know what to do when payments are deliberately stopped.

As a follow up to our post on Child Maintenance Service, we hope the frequently asked questions below will help if you are in this situation.

What do I do if my ex won’t pay?

If the liability to pay child maintenance (or indeed spousal maintenance) is contained in a court order, the payee can take action to recover any arrears by applying to the court, which will choose the most appropriate method of enforcement. This will depend upon the financial situation of the payer and this will be examined by the court in order to determine which method of enforcement is most likely to achieve the desired result.

If the payment is through the Child Maintenance Service (CMS), they have various powers to recoup arrears.

How long before action can be taken in this situation?

If payments are stopped, this is likely to be in breach of the court order. At this stage there will most likely be maintenance arrears and enforcement proceedings can begin.

If payment is made through the CMS, then they will contact the ‘paying’ parent to find out why the payment has stopped and to arrange for it to be paid. They will then be given one week to comply.

What are the next steps?

This depends on whether there is a court order or a CMS assessment. If the maintenance was decided as a result of a court order, then you will need to go back to court. If it has been evaluated by the CMS, you will need to contact the CMS.

How common are such non-payment situations?

Unfortunately, in our experience non-payment occurs frequently – particularly in times of recession and financial strain, but also out of malice. However, there may also be a genuine reason for non-payment such as the payer losing his/her job.

Do you have any advice on preventing situations like this from escalating?

Maintain a sensible dialogue with the payer if at all possible, so that any issues can be discussed and solutions sought as they arise. However, we appreciate that this is not always possible.

If I owe maintenance and am in financial trouble – what do I do?  

Avoid burying your head in the sand and take advice immediately. This may include applying to vary the amount due to be paid and wipe out any arrears that may have built up.

Has your ex stopped paying you maintenance? What steps did you take? If you have any other questions about child maintenance that you would like answering, we’d like to hear from you so please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

The post What to do when your ex stops child maintenance appeared first on Jones Myers.

The UK’s sixth largest union has hit out against the government’s Child Maintenance Service (CMS) condemning moves to charge parents a fee to access its help.

Jayne Craven, industrial officer for the Public and Commercial Services Union (PCS) has spoken out against the replacement for the Child Support Agency (CSA), claiming that children will lose out.

“The government believes parents should be able to make their own arrangements when it comes to the care of their children. But if they do need help from a government department, they are going to have to pay to use it – the money will go to the government coffers and not to the child,” she explained.

Under proposed new rules, parents unable to reach a mutual agreement on payment will both be charged a fee if they ask the CMS to intervene. The paying parent will have a 20% fee added to the maintenance payment, while the receiving parent will have to pay 4% to ensure they receive the money to which they are entitled.

Jones Myers is greatly concerned by the introduction of the CMS, particularly as figures recently released reveal that since August 2013, the total number of cases seeking the input of the CMS has risen by 63% from 4,500 to 59,700 by May 2014, confirming that parents need external help to settle the issue of child maintenance.

As a number of our clients are seeking the support of the CMS, we thought it would be a good idea to answer some of the key questions we are often asked.

How is child maintenance worked out?

The amount of money allocated is based upon gross income with deductions for pension contributions made by the paying parent, but not contributions made by his or her employer.

Further reductions may apply depending on the number of nights the child stays with the paying parent per week, and for the number of children in his or her household, which, for example, might be from another relationship or even be the children of a new cohabiting partner.

How much child maintenance will I be entitled to and what will I be expected to pay?

The CMS has a formula to calculate the amount of maintenance that needs to be paid. A basic rate applies if your gross weekly income is up to £800 and a basic plus rate if it is between £800 – £3,000.

How do I receive child maintenance or make child maintenance payments?

The best way to arrange payment is either by private agreement, or to include it in a court order so that the payment is directly paid to the receiving parent. Payment can also be made through the CMS, but they charge a fee for this. If a child maintenance court order is more than 12 months old, you can apply to the CMS for an assessment and this replaces the court order.

What happens if my ex won’t pay?

Payments under a court order can be enforced through the court system. If arrears build up after a CMS assessment, they will take action to enforce arrears that have built up. They will, however, charge for this service.

I’m self-employed and run my own business, but don’t have a set salary. How will the court decide how much I should pay?

Initially, the court will apply the CMS formula, probably using the last documents filed with HM Revenue and Customs, such as a tax return or business accounts. It can also take into account other factors and order more up-to-date financial information to assess the true income and benefits available to you from your business. The court has the power to assess and take into account both parties’ circumstances, which gives it more flexibility than the CMS.

How long do I have to pay child maintenance for?

You will normally be expected to provide maintenance, either through the court or CMS, until a child is 18 years old or ceases full time education or training. The court can extend an order for maintenance for older children who remain in full time education or training, or who have special needs.

Do you have any other questions about child maintenance that you would like answering? We’d like to hear from you so please call us on 0113 246 0055, leave us a comment below or drop us an e-mail.

The post Child Maintenance – all you need to know appeared first on Jones Myers.