Need to pick mumsnet brains - court costs question and child maintenance maximum...

[TiredAndConfused22]

Hi

Can anyone help? If my stbxh and I continue to disagree over the financial settlement for our divorce, and it goes to the court to decide, but he can afford to pay for a solicitor and I can't, how does that work? Can he be forced to pay my costs? Or am I up the proverbial creek?

Also, if a non-resident parent earns more than the £3000 per week catered for by the Child Maintenance Options calculator, what normally happens? Is the child maintenance they pay simply capped at that top rate, or would you expect to continue to use the formula for any income above this rate? What would a court do, does anyone know?

Many thanks in advance, Tired x

If your ex is a high earner (as I gather from your second question) then you can make an application for Maintenance Pending Suit, and part of that can be to apply for your legal costs to be covered. It is worth speaking to solicitors to see whether they would be prepared to make such an application knowing they would be paid after the hearing.

From what I can gather, if earnings are higher than £3k per week then you can make the application for child maintenance through the courts instead.

I'm not a solicitor and there is no substitute for professional advice from a family solicitor about your particular circumstances. A good starting point would be to make an appointment with a solicitor to find out about the process and discuss funding options.

Generally speaking if you are financially dependent on your husband, he has disposable income once his own living costs have been met and you cannot reach an agreement about spouse maintenance (or paying the mortgage, bills etc in lieu) you may be able to claim Maintenance Pending Suit from him in the the meantime so you don't suffer undue hardship.

In the past sometimes MPS would cover legal costs. The law has changed and this is no longer possible, although now if you can't raise funding any other way you may be able to make an application for a Legal Services Order requiring your husband (assuming he has resources) to pay for your legal services. Alternatively loans from specialist companies may be available, or in some cases solicitors will agree to wait for the fees to be deducted from your share of the assets when you settle.

Normally the courts have no powers to order child maintenance and when the payer of child maintenance earns more than the Child Maintenance Service capped amount it is common for child maintenance to be included in the overall divorce settlement by agreement. If no agreement can be reached the courts can only rule on the top up over the CMS capped amount. Although the court uses the CMS/CSA rules for guidance judges must also consider factors (both parents financial resources, any resources children have and their needs) set out in the Children's Act 1989 and there is no formula.

Sorry went to make a cup of tea and post crossed with baby barrister!

Top ups through the court. I've been going through this for over a year now. Many fun and games.

Thanks all for your replies. Was really hoping it wouldn't come to the court, but looks as though we might.
Pinkballoon how come it's been going on for a year? Blimey. I just think that the child maintenance should go up with his income, as surely the kids' lifestyle should improve as his does. Just as it would come right down if he lost his job of whatever. I don't even mind if he pays the additional amount into the kids' trust funds or something, if he really can't bear the idea that I might derive some small benefit from the money ;-)

Thanks, I have pm'd you (I think!) babybarrister.

TiredAndConfused22
3 hearings last year (including final hearing) and financial disclosure (which was partial in his case, and completely ignored by his cohabiting partner other than providing a falsified letter…...). Essentially, he wouldn't disclose what his true income was (and took less drawings in the run up to the final hearing in an attempt at pleading poverty). I already knew the ins and outs of his finances and knew he was lying, but it will often come down to you to prove otherwise if they are intent on playing games.

Then had a Financial order all in place from the court after the Final Hearing last year, and he systematically ignored every single one of the orders in it…………..

So back in court next week.

You will need a way of keeping track of what his income is (for increased maintenance payments). So if you go to court, try and get a mechanism for this written into the order.

Mine lied on CSA forms previously about his income, so am still dealing with that one.

The CSA are…….. variable. You will sometimes hit upon a real gem there who will give you lots of advice - probably out of pity! But most of the time it seems that if the father cooperates even a small amount of the time, they'll give them the benefit of the doubt. Because of the large amounts of money involved, they seem to take the view that I should be grateful for anything…… Had a few mentioning how large the maintenance payments are. To which I have to keep reminding them, that yes, would be very nice if I saw any of it, and if he hadn't run up so many debts…..

Pinkballoon - sounds like you have a similar ex-H to mine... we're due in court for our final hearing in a couple of months and I anticipate a similar lack of cooperation. Although not self-employed, my ex has gone from earning £200k+ to a fraction of that, and now (quelle coincidence!) has just "lost his job" prior to the hearing itself.

I totally agree that you have to prove as much as you can - it's so hard. At first disclosure he admitted to one tiny pension. I knew he had more than that but other than historic emails where he vaguely discussed them with me I'm not sure what the court can do. He's now disclosed another pension, but in general his disclosure is, as my barrister describes it, "woefully inadequate". And we've had one Form E, two schedules of deficiencies and two sets of replies. Yawn.

Also hear you re. CSA talking about large amounts involved. Ever decreasing amounts in my case, recently gone down to zero. I found that out via the CSA, not from him directly.

Sorry for derailing a bit there OP, ahem

TeaPotDictator

We got up to 3 schedules of deficiencies…….. And mine wouldn't even sign and swear his Form E until he was ordered to by the court.

And have also had the threat about resigning from his job…….. (yawn). As well as him apparently moving out of his girlfriend's house just before the final hearing (big yawn), but back in again after hearing and disclosure complete. And a forged undated letter from accountants re. his girlfriends business stating that it had closed down years ago produced to the court. Er….simple online check….its still going……. - she resigned her position and handed it all over to her parents just before the final hearing (big yawn).

The Judge sat yelling at him for most of the morning of the final hearing, but he just sat there and took it, whilst mumbling "I left it all at work" (the key documents needed).

So am hoping my patience will be rewarded next week. :)

I truly believe the high earners are the worst to deal with (and the meanest).

:) :)

I am rather banking on the Judge having 'seen it all before'. My sol says H is the worst he's had to deal with but I know there are others out there!

Were you happy with the judgement?

Teapot dictator
Yes, thats what my former barrister said about my ex. Kept saying that he had 'the mark of the man' and that the judge would too; however the judge knew the company that my ex worked for (he's a solicitor believe it or not!) and gave him the benefit of the doubt! He'll see the results of that decision on Wednesday when we're back before him with my ex having defied every order he made, and him having to sort out the mess!! It will be interesting to see if he actually turns up.

The judgment didn't really give me anything now for my DC because my ex managed to convince the judge that magically his salary had dropped £1000 per month and his relationship with his cohabiting partner was on the rocks (so couldn't do her financial disclosure) - and all only days before the final hearing! The only real thing that I got out of it was an order that he pay me back unpaid child maintenance (which he promptly ignored) and that he would pay for nursery and school fees (the latter of which I hadn't even asked for!! and anyway he will ignore anyway.)

Babybarrister - Yes, I am hoping for a hefty tosser tax to be applied!

I live in hope of a tosser tax! Oh Pinkballoon... the tales I could tell. In my case my H claims there is an uncrystallised tax liability - for which he can provide no proof of existence whatsoever. He claims it's somewhere between 10p £200k and £1m. He says that if we go to a final hearing he will crystallise this mystery debt. And the only way he will settle is if I agree to take on joint liability for any tax debt he has, should it ever materialise in the future.

Oh, and he also wants to "charge" me £2,000 a month to live in the FMH with the children, as I've been doing since separation, and then take the total of the money I've "already had" and deduct it from my part of the pot.

I'm counting down the days till the final hearing, I really am.

Teapotdictator
Oh, I've had all that one! The tax liability - with no proof. And the unresolved credit card debts - with no proof. And if you ask for any proof, it is 'harassment' ???? (Have you had that one yet? I hadn't realised how common that allegation is when they don't want to disclose anything!) And then writing to me saying that he and his girlfriend will provide their disclosures to the Judge, but not me because of my 'harassment'??? …..(another common ploy). But they didn't even give it to the judge. ????

When he received an attachment to earnings application from the court re unpaid child maintenance ordered for payment for the judge, he wrote to me (copying the court) stating that he would sue the COURT and me if I continued with the action. Apparently, he will also have me thrown out of the court room (literally) for bringing the action. Yeeeeeeesssss…….

And if I cannot afford to house our DC (because he won't pay the maintenance and bonuses ordered) - he will apparently have her with his girlfriend, because I am apparently putting his daughter in a perilous position by not being able to house her adequately in the future……… (Should also add here that he's ignored his DC for over a year and she doesn't even know who he is, and DC has never met the girlfriend, who I know is one of many….) He added at the end of the same letter that he wanted me to reinstate email and text contact with him so that he could 'possibly' help out in the event of an emergency with DC.

I am Ms Teflon now.

Oh no in my case he has accused me of deliberately stealing documents from him, only to then ask him to disclose them, as a legal tactic to make him look stupid when he can't. This is his new explanation for why he can't really answer any deficiencies.

Any/all encouraging words welcome. Now that he's "lost his job" he's got even more time on his hands to spend thinking up new ways to annoy me.

Ha ha! Yes, my one sent me a letter (copied to the court) after we'd exchanged Form E's (his was late, incomplete and unsigned and I think the only truthful things in it were his name and date of birth) - saying that he intended to expose all of the fraudulent contents of my Form E???? I had actually given even more evidence than the form asked for - all payslips, time sheets, letters from employers, even statements from dormant accounts. And the judge even made mention of all of the trouble that I'd gone to to compile my Form E.

Funnily enough, he never did. And didn't even ask to cross examine me at the final hearing. It is all such utter b……s.