Every divorce should result in a clear financial settlement. Whether the family court order is given by consent or handed down by a judge at final hearing, each spouse should have negotiated a divorce settlement that makes sense in the round. No one wants a coach and horses to be driven through a delicately balanced court order just months after it is given. It wouldn’t be fair, surely?
This is the situation facing Jane, who asks me:
Please can you tell me whether I am able to take my ex husband back to court to enforce the court order for child maintenance that the CSA have reassessed and reduced. There has been no change in his circumstances other than a salary increase but he no longer wants to pay what was agreed in our settlement and has reduced payment by £300 per month. He only pays for the children, I have no claim on pensions etc. and he does not pay me maintenance. I gave him £20,000 on divorce based on what he would pay for the children. He has now been able to disregard the court order but, of course, has not returned any of the money I gave him. It just seems unethical to me and leaves us in dire financial straits.
I would like to know whether the CSA have the final say on this matter or whether I can go back to court to challenge their decision.
Jane’s child support enquiry reflects one of the great problems for divorce clients who have reached what is hopefully a carefully balanced divorce settlement taking into account capital claims and income claims, including spousal maintenance and child maintenance. The problem is this: even if there has been a family court order for child maintenance made at the time of divorce, provided the order was made after 3rd March 2003 and has been running for more than one year, then either spouse is able to ask the CSA to deal with the child maintenance aspects. The child support element of the family court order is therefore made redundant. The family court can no longer deal with the child maintenance element. That carefully crafted and balanced family court order is now in danger of looking very lop-sided.
It would appear from what Jane tells us, that the £20,000 lump sum she agreed to pay her ex-husband was more than she would have agreed to, if she had known that the amount of child support maintenance she would receive in the short to medium term would be reduced. I do not know how much Jane was receiving under the original court order but I’m guessing that the reduction of £300 a month is an absolute killer.
Jane`s ex-spouse will now be assessed to pay child support by the CSA until the children reach the age of 17 (or 19 if they are in education or vocational training). The family court will have no further role to play on child maintenance – unless there are some exceptions, such as the costs of meeting the needs of a severely disabled child, which do not appear to arise in Jane’s circumstances.
Jane tells us: I gave him £20,000 on divorce based on what he would pay for the children. He has now been able to disregard the court order but, of course, has not returned any of the money I gave him. It just seems unethical to me and leaves us in dire financial straits. I have not seen the order Jane obtained from the family court, I do not know whether it was given after a disputed final hearing or by consent. If solicitors were involved then as advisers for Jane they should have warned her of the possibility of her ex-husband being able to involvethe CSA at a later date. Clearly, Jane`s ex had calculated that he would pay less under the CSA regime than the amount of child maintenance he had agreed to meet under the family court order. It is important to note that the family court cannot give an order for child maintenance unless both parents are in agreement for the order to be made. So, if I understand Jane correctly, there may well have been an arrangement for the payment of 20,000 provided that child maintenance at the agreed level continued to be made.
The value of (good) lawyers?
This is where the lawyers are meant to earn their corn. If Jane had divorce lawyers (and was not self-repping) she should have been told in words of one syllable that her ex-husband could go to the CSA. Those same lawyers should have explored with Jane certain arrangements that could have been recorded in the family court order that would have protected Jane against the possibility of the CSA becoming involved. One such mechanism would have been for Jane’s ex-husband to agree to make up, on a pound for pound basis, any shortfall in the amount of child maintenance ordered by the court once the CSA became involved. There are a number of solutions that could have been explored but if Jane had divorce lawyers at the time and is unclear how she has been left so exposed she should contact them and ask for an explanation.
So, on the facts known to me, Jane cannot go back to the family court. The CSA deal with matters now. However, Jane is entitled to ask the CSA to check that her ex-husband has given full financial disclosure to the CSA. I do not know the details of the case. The CSA assessments are based, in the main, solely upon the net income of the non-resident parent. But Jane may want to ask the CSA to investigate further, and ask for what is called a ‘variation’, if any of the following scenarios apply:
- Her ex has capital assets (but not business assets or equity in his home) over £65,000. If so, the CSA may deem the asset to produce an income of 8% per annum and this will be factored into overall income and increase the maintenance assessment.
- He is taking dividends through a company rather than a wage or retaining significant capital in his company which could be taken as income
- He is diverting income elsewhere, such as through a new partner
- Her ex has a lifestyle that is clearly inconsistent with his declared income to the CSA.