My postbag continues to bulge with divorce enquiries focussing on child support issues and spousal maintenance. The conclusion of a divorce does not, of course, mean the end of disputes or problems over child maintenance or the intepretation of family law court orders. Here is my most recent query:
Following a very messy and financially costly divorce, a court order was made that included a RPI increase at the insistance of the petitioner. The only alternative I had was to go througth a full court procedure which could have significantly increased the fees that at that point were spiralling out of control. The date of this increase is in effect from 20012 (this is the actual date on the court paper). My ex wife has not ‘reminded’ me about this probably because she is still being persued by her solicitor for the oustanding fees that she ran up during the divorce-since the divorce she has instructed other solicitors in an attempt to entangle me in more nonsense which I refuse to engage in. I normally direct the new solicitor to the original one where the fees remain oustanding and this tends to silence the correspondence for a while until a new instruction is generated.
I have and will pay the monthly child maintenance fees until my child reaches the age of 18 or until she leaves full time education as stipulated in the court order. It was my ex-wifes solicitor who drew up the order and maintenance payments will cease approximately 2018 but as stated the increase id documented as 20012-what are my options?
To begin with, I’m not sure whether the order referred to above contained spousal maintenance and child support (maintenance) or just child maintenance and this attracts the RPI increase. But, no matter, since the principles remain the same for either order (with one exception I’ll return to below).
- the order is made against the payor so it is enforceable in case of default. I consider that this includes any failure to comply with an RPI increase ordered by the court (even if it was by consent).
- the purpose of the order is two fold – an automatic increase in the maintenance each year prevents it losing its true value over a period of years and it makes it unncecessary for the parties to have to apply back to the court for a variation (at significant legal cost) in the amount being paid.
Carry on as you are.
- But you know the increase is due and the defecit will build up. You may (eventually) receive a solicitor’s letter asking for payment at the new level (and threatening enforcement). If you ignore it and an application for enforcement is made, be very careful as you could end up on the wrong side of a costs order. Especially if a judge decides it is not a case of ‘can’t pay’ but ‘won’t pay’.
- The application back to court could be for a variation of the amount of maintenance as well as enforcement. Your ex may think you could afford to pay more and ask for the increased amount to be index linked as well. If this happened you are entitled to ask the court to decrease the amount and it will be a question of fact as to whether the judge thinks the original amount under the order should go up or down, or remain the same. It is possible for an attachment of earnings order to be made at the same time (if you are not self-employed) as a way of ensuring that the right amount is paid each month going forward.
- If, by the time your ex made an application to the court to enforce or vary, your arrears were more than 12 months old, your ex would have to ask permission from the court to recover any arrears older than 12 months.
Apply back to court yourself
If you are struggling to pay the original amount you could apply back to the court yourself to vary the amount downwards and ask the court to ‘remit’ (waive) any arrears that may have built up.
Or, just pay the new amount
You could calculate the increase in the maintenance , start paying it and have a quiet life.
I mentioned an exception above. This is where the order is for child support/ maintenance. This would only be in existence if you and your ex agreed to the order. In the absence of agreement, the family court has no jurisdiction in child maintenance issues (with some further exceptions, I won’t mention here!). In the absence of agreement, the CSA will deal. It is possible for either party to an agreed child maintenance order in the family court to wait, to all intents and purposes, a period of 15 months from the date of the original order and then ask the CSA to take over so the family court will no longer deal with the child maintenance element.