Enforcement

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Enforcement of maintenance orders abroad: USA

May 20, 2012 in child maintenance, Enforcement, International famlly law, spousal maintenance by Alan Larkin | No comments

Child support enforcement

Over the hills and far away

It is not uncommon for divorce proceedings in the English jurisdiction to involve a spouse who lives abroad and child support issues are usually one of the main concerns.  How do you obtain a divorce financial settlement including child support if your ex is not willing to negotiate? The Maintenance Orders (Reciprocal Enforcement) Act 1972 may help.

This is the subject of a recent enquiry from Sarah (not her real name)

I am divorcing my husband who lives in USA – the divorce case is in UK. I first contacted my solicitor last year in may and this has been taking a year now just to get divorce – i am not asking anything financially from my husband even knowing how much i am entitled to, however i want him to start paying child support which is 15% from his income as i have been advised from my solicitor. i tried to negotiate but my soon to be ex husband is not paying. how long will it take if i issue proceedings? thank you!

To be honest, I don’t know how long it would take if Sarah issued proceedings.  It depends upon the type of proceedings, the foreign jurisdiction she is dealing with and the speed of her lawyers,  but I suspect it will not be quick for reasons I will explain shortly.  International claims for financial relief are a notoriously difficult area to navigate even for highly experienced family lawyers.

Back to basics…

It sounds as if Sarah has done the right thing first which is to try and negotiate the level of child support.  Unfortunately, her spouse is not playing ball.  There are few things more unattractive than a man who won’t take financial responsibility for his child or children.  So what can Sarah do?

In the English jurisdiction, for the great majority of cases in the family courts involving child support, the court only has power to give an order if the spouses are in agreement.  In the absence of agreement, the CSA has the power to carry out a determination of the absent parent’s net income and demand payment on the basis of a formula.  In Sarah’s case, since her solicitor advises she should seek 15%, I deduce that Sarah has one child with her husband. (The CSA will seek 15% of net income for one child, 20% for two and 25% for three or more children). In general terms, the CSA only has jurisdiction for parents who live in England and Wales.

But the CSA can still retain jurisdiction for the absent parent if:

  • the absent parent is in the armed services; or
  • working for the UK government; or
  • employed by a UK registered company

I’m presuming that none of these categories apply in Sarah’s case.  So if Sarah can’t negotiate with her husband and the CSA don’t have jurisdiction, then she will just have to issue in the English court to get child support, right?  Not necessarily.

 Transmission of a claim?

If Sarah issues financial proceedings in the English courts – and it would normally be in her local Magistrates’ Court (also called a Family Proceedings Court) and obtains an award of maintenance (for child support) against her husband then she will need advice upon how to enforce it in the USA.  But Sarah should consider, if she has not already, the ability to transmit her claim for maintenance rather a final order for maintenance to the USA and to ask the court there to initiate the claim for child support against her husband.  To my knowledge, the American states give the choice of transmission of the claim or the enforcement of an English order.  It may be more advantageous to Sarah to transmit the claim to the American jurisdiction rather than have her English lawyers pursue it here and then seek to enforce in the States.

Sarah should test the water by googling family law attorneys in the state where her husband resides and then sending an email to several of them asking them to weigh up for her the benefits of transmitting her claim for child maintenance or enforcing a final order for that maintenance from the English Court.  This feedback will assist her English lawyers to decide the best course of action for Sarah.

Enforcement of final order

Whether Sarah is advised to transmit her claim for child maintenance or whether she obtains a final order first in England and then seeks to enforce in the USA, she will have to follow pretty much the same procedure.  Her solicitors will need to contact the REMO (Reciprocal Enforcement of Maintenance Orders) unit at the Office of the Official Solicitor and Public Trustee.  REMO is a central authority for international maintenance claims in England & Wales.  The good news about this approach is that most of the enforcement is undertaken by way of liaison between governmental departments (in the English and foreign jurisdictions) so it will often be free.

Since Sarah is looking to get financial support from a husband in the US, I’m sure her solicitors will have regard to the Reciprocal Enforcement of Maintenance Orders (United States of America) Order 2007 which allows for a UK order for maintenance to be enforced provided the payer is resident or has assets there.  Equally, if Sarah and her advisers conclude that the transmission of her maintenance claim to the US is the better option then they will consider The Recovery of Maintenance (United States of America) Order 2007.

Finally…

Sarah states that she is not asking for anything financially from her husband (apart from child maintenance).  I’m not sure why not, if she really needs it and if her husband can pay.  The Maintenance Orders (Reciprocal Enforcement) Act 1972 deals with spousal maintenance as well as child maintenance.  I’m just saying…

 

 

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Arrears of maintenance following divorce

March 19, 2012 in child maintenance, Enforcement, spousal maintenance, Variation maintenance by Alan Larkin | No comments

Many a mickle makes a muckle

Spousal maintenance issues following divorce continue to dominate my post bag.  In particular: the automatic variation of maintenance following a divorce financial order by reference to the RPI.

What has been genuinely illuminating to me as a family law specialist is the extent to which there is boundless room for confusion over the interpretation of a maintenance order, whether spousal or child support.

This week’s postbag:

John (not his real name) had read some of my blog posts and then asked:

Re: Variation of Maintenance agreement. Could you clarify how it works for second and subsequent years.  My ex-wife and I disagree. She says that the shortfall is cumulative. [further details omitted to avoid personal identification]
The details provided by John made it clear that he had been paying the maintenance ordered by the court but, for whatever reason, the link to the RPI which was intended to increase the amount of the maintenance each year, had gone by the wayside. So, the sum of maintenance approved by the court in the original order has not been increased, as was intended by the order, for three years.  John and his ex cannot agree  how the shortfall created in the past is calculated or applied so they can get back on track.

The solution

I suggest the art of the practical.  Strictly speaking, the non-payment of the inflation-linked increase each year constitutes arrears.  For example, let’s say the original sum ordered by the court is £1800 per annum.  At the first year anniversary the application of the RPI link, if it is applied, would have increased the original sum.  Let’s imagine it is by £150 per annum.  So the second year sum of maintenance is £1950 per annum.  Upon the second year anniversary let’s imagine the RPI increase is £250 per annum.  The increased sum paid is therefore £1950 plus £250 = £2,200.  Continuing on this path, the third anniversary is (let’s say) an increase of £400.  That is, £2,200 plus £400 = £2,600.

I have laid out below how the missed RPI increase every 12 months would accrue  following an original order for maintenance.

So, by month 48 the arrears would be £1350.  This needs to be paid by John to bring the maintenance up to date.  If John refused, his ex could apply to the court to enforce the non-payment and ask the court to fix the payments at the correct level for month 48.   However, where there are arrears that are more than 12 months old, John’s ex would need to ask the court for permission to recover these older arrears.  John may ask the judge to remit (waive) the arrears older than 12 months.

In reality, the legal costs of going back to court would be prohibitive if there is no access to legal aid, and it would be stressful.  Better, surely, to fix the correct amount at month 48 so it is at the right level going forward and prevents any further arrears building up.  Then, the older arrears could be paid in a series of lump sums over the next year or 18 months.  So, divide the arrears by 12 or 18 and add on to the present monthly payments of maintenance.

Remember, if John and his ex are finding it hard to negotiate the precise way to get themselves back on track, they could consider a mediation session to help them get it sorted.  One session should do it.

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Child support and maintenance after divorce

March 16, 2012 in child maintenance, Enforcement, spousal maintenance, Variation maintenance by Alan Larkin | No comments

Who knows what the future holds?

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.

Your options

Carry on as you are. 

    1. 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’.
    2. 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.
    3. 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.

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Enforcement of Maintenance video

March 4, 2012 in child maintenance, Enforcement, spousal maintenance by Alan Larkin | No comments

Here is a video: setting out the forms referred to in my last post on this subject:  enforcement of maintenance by attachment of earnings.

 

 

 

 

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Enforcement of maintenance: Attachment of Earnings Order

February 25, 2012 in child maintenance, Enforcement, spousal maintenance by Alan Larkin | 3 comments


Maintenance payments can be enforced by an attachment of earnings order

 

It is all well and good to obtain an order for spousal or child maintenance but what can you do when the person ordered to pay it, won’t pay?  I received the following enquiry:

Could you help me please find information to support an application to the court for an attachment of earnings order which I should like to apply for as my ex-husband does not comply with the RPI increases, and refuses to pay by standing order.

This cry for help is referring to the situation where the payer of maintenance (what lawyers call periodical payments) is paying the amount of maintenance originally ordered by the court but is not increasing the amount each year using an automatic upwards variation linked to the Retail Prices Index (RPI).  If you’re not sure what I’m talking about but think it might apply to your situation then just click on the Category for “Spousal Maintenance” on the right hand side of this web page.  This will bring up my previous posts on maintenance and I hope you can follow them without too much trouble.

In the present case, it is possible to make an application to the Court for an attachment of earnings order so that the employer is compelled to deduct the maintenance from the payer’s wages and send it directly to a specialist administrative unit at the court who will then pay it to the person with the benefit of the maintenance order.  This procedure exists and is available to just about anyone who is owed money by another person.

The ex-husband’s refusal to  apply a court ordered annual increase in line with the RPI will create arrears.  Please note: if the  arrears are more than 12 months old then it will be necessary to apply to the court for leave (permission) to enforce these older arrears.  

The application will be made back to the county court which made the original order. The request for the order will be made on Form N337.

New procedure….

The Attachment of Earnings form N337 is not very well suited to dealing with arrears of maintenance.  It needs to be amended accordingly.  Also, strictly speaking the amount to be deducted in the attachment would be limited to the modest amount of increase attributable to the RPI uplift that the ex-husband is refusing to pay.  But it would be better for the court to specify the new amount (the original amount plus the RPI uplift) to be attached.  Unfortunately, Form N337 is not very flexible.

I am going to presume the application is to enforce the payment in a county court.  The maintenance would be a ‘qualifying periodical payment order’ under the Maintenance Enforcement Act 1991 (‘MEA’).  I mention this because I am not sure if the ex-husband in this case was originally ordered to pay the maintenance by standing order or if the order was silent and the ex-wife simply wishes that he would pay by standing order because his payments are erratic.  The MEA is helpful because section 5 (a) allows the court to specify that the payer of maintenance must do so by standing order.  The Application to enforce payment of maintenance can therefore contain a request that the payments are made by standing order.

The Family Proceedings Rules 2010 (FPR) normally require a person making an application to the court to have attended a mediation meeting first but it IS NOT required in the present case since it deals with enforcement.  But I would recommend sending a recorded delivery letter to the ex-husband setting out his breach of the order and the amount required to put it right and asking for those arrears to be paid within 14 days.  State that otherwise there will be an application to the court and a copy of the letter will be attached to the court application.  Point out you will ask the court to make an order for costs in your favour.

The FPR have introduced new rules for the enforcement of existing orders including those for payment of money. This is dealt with under Part 33 of those rules.   By all means, if you are fairly certain that an attachment of earnings is the right application then you can just complete Form N337  and send that off to the court.

But…  if you are not entirely sure that an attachment of earnings is the right type of enforcement then your application to enforce the payment could be submitted on Form D50K to accompany Form N337. Form D50K is entitled: “Notice of Application for Enforcement by such method of enforcement as the court may consider appropriate”.  The whole point of this form (and it is a welcome change to the court’s approach) is that it allows the court to consider the most appropriate method of enforcement. If it appears to the judge that another method is more appropriate then the payer of maintenance will be ordered to attend court so the relevant information can be gathered.   So  it is possible to pursue a different type of enforcement instead of having to submit a wholly new application.

You will need to pay a court fee but you may be able to get a fee reduction by completion of a  EX160 fee remission form.

I will post a video flagging up the forms mentioned in this post here.

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