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Enforcing spousal maintenance and CMS appeal

(19 Posts)
saoirse17 Fri 14-Apr-17 12:38:00

My ex claims he has no income and therefore cannot afford to pay either child or spousal maintenance.

He has applied to CMS and they have put him on the nil rate meaning I get no child maintenance at all, starting this month!! Can I appeal this in some way? He's made his payments up until now so surely he must have some money or income that he's managed to hide? What can I do?

He has also applied to have the financial order varied with regards to the spousal maintenance, and sought remission from any arrears. What does this mean for me? Does he at least have to keep paying the spousal maintenance until that court case is finished? Or can he just stop paying? Can I in any way enforce the payments?

It all just seems really unfair, I will not be able to pay the mortgage this month after what he's done!

I really don't know what to do, grateful for any advice!!!

prh47bridge Fri 14-Apr-17 17:41:32

If you have evidence to show that he has an income such as his lifestyle being inconsistent with his declared lack of income you may be able to appeal. However, unless you have more than suspicion an appeal will be pointless.

Regards spousal maintenance, there is no guarantee he will get the variation he wants or that he will be released from paying any arrears. You can file your own application for enforcement of arrears.

The central question is whether he has any income. The fact he was able to make payments in the past does not mean he still has an income. His income may have dried up. If he genuinely has no income and is not deliberately depriving himself of income in order to avoid paying you I'm afraid the courts and the CMS won't be able to help you. He cannot be forced to pay money he does not have.

saoirse17 Sat 15-Apr-17 12:33:07

Can I file an application of my own against him at he same time as his application is running?

JiltedJohnsJulie Sat 15-Apr-17 12:51:31

Is there a reason you haven't enforced the arrears before OP?

saoirse17 Sat 15-Apr-17 12:53:03

He hasn't stopped paying yet, he's just said he won't be able to going onwards.

JiltedJohnsJulie Sat 15-Apr-17 12:55:08

Sorry am really confused. You said he had arrears.

saoirse17 Sat 15-Apr-17 12:56:25

Not yet, but if/when he stops paying he will be in arrears. Sorry if I was unclear.

JiltedJohnsJulie Sat 15-Apr-17 12:58:42

Sorry, I thought remission from arrears were from actual arrears not hypothetical.

saoirse17 Sat 15-Apr-17 13:02:12

I guess he put that in as he's planning to stop paying.

prh47bridge Sat 15-Apr-17 13:48:22

Yes you can put in your own application. However, as there are no arrears you can't apply for enforcement. If you want the current level of spousal maintenance to continue you simply need to oppose his application, not make one of your own. You could apply for an increase in maintenance if something has happened that would justify a change.

saoirse17 Sat 15-Apr-17 14:41:15

He has applied to vary the spousal, could i during the same court case argue that I want a larger share of the house? As it is now, I was granted 60% in the original financial order. Could I ask to have that increased to cover that he's cutting the maintenance?

MrsBertBibby Sat 15-Apr-17 14:47:01

Conceivably the court can capitalise your maintenance if he has available capital, but it's fairly unusual.

saoirse17 Sat 15-Apr-17 15:15:50

He doesn't have available capital.

We do have the house that I live in as an asset, I have 60% and he has 40%. Could I ask to increase my share during these proceedings? Or could I make my own application to have a larger share?

RebelRogue Sat 15-Apr-17 15:52:32

Does he actually have a job/benefits /income?

prh47bridge Sat 15-Apr-17 17:22:15

The capital split cannot normally be varied but there are rare situations in which the court will reopen the entire financial settlement. Essentially this is when something has happened that means the assumptions on which the original order was made are no longer valid. If you want to consider going down this route you need to consult a lawyer who can tell you your chances of success once they are in possession of all the facts.

saoirse17 Sat 15-Apr-17 23:17:37

@RebelRogue he does consultancy from his own company but the projects seems to be coming and going. I don't know any details. No job with "proper salary".

saoirse17 Sat 15-Apr-17 23:22:19

@prh47bridge I have had a look at form A now, and seen that there is an option for property adjustment order, could that be the one in after to increase my share of the property?

prh47bridge Sun 16-Apr-17 00:59:13

Get proper legal advice. Based on the information you have posted here I am not convinced you have a case that would persuade the court that a change in the capital split is justified.

Traveller123 Wed 19-Jul-17 08:38:41

To OP. If ex has his own Company there must be accounts and records somewhere. Was this not all disclosed before the Financial Order was issued?

CMS must have had some documentation to arrive at their assessment. HMRC records for example or Companies House records? Hard to believe they would take his word that he has little or no income.

Can't see the courts agreeing to change the asset split due to his current inability to pay maintenance as he could argue that his original share should be restored once he is earning again.

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