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Shared care - is maintenance payable?

(29 Posts)
Snippets75 Tue 09-Jun-15 18:31:28

DH and I have 2 kids each. Mine are 7 and 5 and his are 12 and 9. Mine are with us full time and his 50% of the time. He shares his kids exactly 50% of the time with his ex and pays 50% of all costs, including clothes, food, actitivies, holidays etc. He and his ex earn the same and he has never paid maintenance to her in the 5 years since they split on the basis that he already pays half the costs. Out of the blue, his ex has now said that she wants maintenance payments on top of him having them 50% of the time. The CMA calculator seems to say that even were there is shared care, maintenance is still payable, in this case �260 a month. Seems massively unfair, especially as DH and his kids have just moved in with us which we think has triggered his ex asking for this as she must think we have more money, which isn't the case at all. DH is v upset about it and wants to say no on the basis that it's completely unfair but it looks like if it goes to court then he would have to pay. Does anyone have any experience of whether maintenance is paybale in circumstances where there is truly shared care?

Starlightbright1 Tue 09-Jun-15 18:36:43

I think ex may be right though I don't agree... Does she have the child allowance? this may be the point..Try the online calculator as overnights do give a reduction

slkk Tue 09-Jun-15 18:44:14

I think if she gets child benefit she may be seen by law as primary carer. In this case I would suggest paying the child maintenance but then no longer contributing to things like uniform, school trips etc as these should be primary carer responsibilities. Alternatively she could opt to continue with sharing responsibility and costs but no cm as children's costs are divided exactly. I knew someone in this situation once and each parent opted to receive cb for one child.

Snippets75 Tue 09-Jun-15 19:02:00

Thanks both. She does receive child benefit for both kids which apparently gives rise to a presumption that she is the main carer. DH agreed that she could have the child benefit as he was being nice! Pretty sure she won't allow him to receive it for one child. Does she have to agree? I have checked the online calculator and included that they are at ours 3 nights a week but it still means he has to pay �260. He said to his ex that if he pays that then he won't pay towards the other costs as he has been doing but she wants him to pay for both. Practically, it would also be difficult to not spend money on clothes, holidays etc. Seems very unfair. Does anyone know if the CMA would enforce this if DH refused to pay?

3CheekyLittleMonkeys Tue 09-Jun-15 19:11:50

Message withdrawn at poster's request.

slkk Tue 09-Jun-15 19:19:46

Obviously he would need to provide clothes and holidays etc for while they are with him, but should stop contributing to other things that are for general use in both houses and school trips etc. Can she justify why she should receive money from him when care is shared? Really she should only need the money if the children are costing her more.

crossroads15 Tue 09-Jun-15 20:30:03

Technically yes, maintenance is payable BUT your DH can appeal and if he can prove 50:50 shared care and demonstrate that he pays 50% of costs, he might be able to get an exemption. A friend of ours managed this a couple of years ago. His ex then pulled the plug on 50/50 though. Which is why my DH hasn't gone down the same route.

It's a blatant injustice and one that the new CMS was supposed to address but they seem to have backtracked.

Your DH's ex is being completely unreasonable and as you say, likely out of spite / jealousy. What costs does she have that your DH doesn't? None!

There's an organisation called NACSA that might be able to help advise further.

flowers

crossroads15 Tue 09-Jun-15 20:32:03

This might be helpful OP
www.nacsa.co.uk/index.php/cs3-equal-shared-care

DLCC Wed 10-Jun-15 12:37:30

My DP is in exactly the same boat. He has his children exactly 50% of the time. He used to pay for 50% of the costs too but now only pays the maintenance. As long as he is paying the maintenance she can't then demand 50% of the costs on top of that.

Snippets75 Wed 10-Jun-15 12:41:56

Thanks all. If he does just pay the maintenance and not cover any costs, then surely this can't be used as an argument for his ex to discontinue the 50/50 arrangement? Finance and contact are completely separate, right?

DLCC, how does this work in practice though? It seems inevitable that he will still have to pick up some costs, e.g. food, holidays, some clothes. Did he just push back on the big stuff and pay for anything else on a discretionary basis?

BaronessEllaSaturday Wed 10-Jun-15 12:49:39

How does the shared care work in practice because you also mention that they are with you 3 nights a week which if that was every week wouldn't work out as 50/50. When using the calculator you need to be exact with the number of nights a year in total or it will give the wrong figure.

Snippets75 Wed 10-Jun-15 14:05:06

Baroness, he has them from after-school on Wednesday until 5pm on Saturday and exactly half the holidays. Every week, like a miliary regime. So in terms of time, it's 50/50 but in terms of nights, he has 3 and she has 4 as they are obviously only 7 nights in the week. Not sure how else 50/50 care could be structured. As you pointed out, this does impact when using the calculator as means he does not get the maximum discount. I also think it's doubly unfair as he has them 3 afternoons a week after school which means he can't work. He works flexibly anyway so this is not a massive deal for him BUT it certainly would be for her is she had to cover childcare costs for 3 afternoons a week. Feels very unfair.

Petal02 Wed 10-Jun-15 14:32:46

OP - I completely understand your point and think that maintenance with 50/50 shared care is ridiculous. However the fact that your DH has the children 3 nights out of 7, and the ex has them for 4, could cause you problems.

Obviously I realise that 7 nights can't be split equally (although I'm sure there are some insane parents would probably insist on a 3am handover if it benefited them financially ..... ) so I wonder if 50/50 residency is only recognised as such if you had a 'one week on/one week off' arrangement?

Snippets75 Wed 10-Jun-15 14:35:47

Cannot imagine the one week on one week off would work in her favour at all! She needs him for childcare unless she can change her job to 1 week on 1 week off!

PeruvianFoodLover Wed 10-Jun-15 14:41:28

My ex and I have one-week-on, one-week-off shared care and a 'old' CSA arrangement which means he pays me maintenance. If we transfer to new CMS rules, he won't be liable to pay.

I'm responsible for buying DD everything she needs; uniform, bus pass, school trips etc. ex is a Disney dad so buys her all the latest gadgets etc but if he didn't, I'd provide her with mobile phone, laptop and bits as well.

3CheekyLittleMonkeys Wed 10-Jun-15 17:04:33

Message withdrawn at poster's request.

DLCC Wed 10-Jun-15 17:22:34

Hi Snippets

DP's ex pays for everything when they're with her, he pays for everything when they're with him including holidays, food, clothes, activities. The only things that are now split are parties and school trips.

yellowdaisies Wed 10-Jun-15 18:10:22

I thought the new system was going to be different in the case of 50-50 care wasn't it?

But agree that if she insists on maintenance he could and should say that it's now her job alone to pay for clothes, school trips, pocket money, etc. At least to the tune of the £260 a month.

crossroads15 Wed 10-Jun-15 19:19:52

It's supposed to be the case but you have to be able to prove not only 50:50 contact in terms of overnights but a 50% share of costs. If the parent claiming the CB decides to claim maintenance, I think it's pretty much up to the parent not claiming CB to prove 'shared care'.

This link explains it a bit more; www.nacsa.co.uk/index.php/cs3-equal-shared-care

My DSD does 50:50; Monday & Tuesday nights with Mum, Wednesday and Thursday nights with Dad and weekends are alternated. It ends up being 5:2:2:5 iyswim. Holidays are split 50:50.

Starlightbright1 Wed 10-Jun-15 20:53:48

I think assuming that it is 4 nights at hers and 3 nights at yours it isn't classed as 50/50 care.

Can you DP have a conversation and point out if she goes down the route of maintenance this will be expected to pay for the stuff you jointly pay for now.

Snippets75 Wed 10-Jun-15 23:20:40

I've told him to but he won't I don't think. He seems to be caving in to what she is asking for. Apparently when he asked why she needed it now (after nothing for 5 years) she said that she was the main carer and that he had had an affair and that she had had to hold the family together etc. He did have an affair (not with me!) but he has always looked after his kids 50/50 even before they split. No idea why she is raising this now but it feels personal as in she knows they have moved in with me and think he is better off, which he isn't at all.

PeruvianFoodLover Thu 11-Jun-15 06:27:07

Apparently when he asked why she needed it now (after nothing for 5 years) she said that she was the main carer and that he had had an affair and that she had had to hold the family together etc

She's lost any 'high ground' she may have had with that justification.

The support provided to DCs by their parents is not proportional to the degree of 'blame' each parent is perceived to have regarding the end of the marriage.

Using her DCs to appease her own hurt is reprehensible.

yellowdaisies Thu 11-Jun-15 08:19:35

If you go for the "main career" and "other parent" model, then part of being the main carer is that you do pay for things such as clothes, activities, school dinners, etc. That's why your DP may be deemed to be owing maintenance - because if she's the main carer then she sounds be paying for those things.

I would guess she's feeling jealous and hurt that his life is moving on and hers isn't, despite the split being (in her eyes at least) his fault. And you're probably right that she may be thinking he should be better off now you're sharing bills, etc. If he really isn't any better off living with you, has he tried explaining to her why this is?

Smellyoulateralligator Thu 11-Jun-15 08:36:28

The split was his fault yellow

PeruvianFoodLover Thu 11-Jun-15 12:38:21

If he really isn't any better off living with you, has he tried explaining to her why this is?

I don't think it's any of an ex's business what their former partners financial circumstances are or how "well off" they are.

My arrangement with my DDs dad didn't change when he moved in with his (now)DW - why should it? He has an agreement with me that he honours - if he chooses to change his living or other arrangements then it's up to him whether he chooses to spend additional disposable income on DD or not - it's not up to me to demand more for her.

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