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Divorce/separation

Here you'll find divorce help and support from other Mners. For legal advice, you may find Advice Now guides useful.

Original poster

Maintenance - have I made a mistake?

13 replies

Tenerife15 · 21/07/2019 10:17

When I was going through my divorce (which was a nightmare by the way), I was advised by my solicitor to keep a majority in the care of my DD. My ex and I both spend time with her but I have an additional night every 2 weeks. He stopped paying me voluntary maintenance a while back (long story!) and I made a claim through the CMS. But now he has taken it to a tribunal and is claiming that he is not liable to pay because he has our DD nearly half the time.
And now I’m worried I will have to pay him the money back if he wins....!?!

Does anybody have any experience of this?

OP posts:
itsbetterthanabox · 21/07/2019 10:20

What is the exact night split? You can check on the cms calculator

waterSpider · 21/07/2019 10:26

Has to be very close to half for there to be no maintenance, with evidence of that. If the split is 8:6 over a fortnight, say, then he gets a big reduction on the 'full' amount, but still pays. Also has to be the whole year, not just when at school. Looking forward, how will things work with school holidays?
I don't think that much can be backdated -- mostly child maintenance cannot, only until dates of applications anyway.

Before others say it -- I do hope you're thinking about the best interests of the child, not the best way to arrange children to be in your own financial interest.

Original poster
Tenerife15 · 21/07/2019 11:05

Sorry for the lack of detail - I didn’t want the post to be stupidly long!

Yes, it’s 8:6. On his weekend, I collect her at teatime on Sunday and that’s my extra night.
What he has been paying is based on the CMS calculator but his tribunal claim is in relation to day-to-day care. When my DD is with him he provides and when she is with me I provide. That’s how it’s always been. I completely know what you mean about her best interests and obviously I want her to spend time with both of us but he earns more than me ...

Surely if the CMS have said that’s what he should pay then I can’t be made to pay it back?

OP posts:
SlightlyMisplacedSingleDad · 21/07/2019 13:10

On that split, he is liable to pay maintenance. A tribunal will uphold that.

FWIW, I think your behaviour is appalling. You have deliberately and explicitly set up residence arrangements purely to safeguard the payment of maintenance - nothing to do with what's best for your daughter.

MamImHere · 21/07/2019 13:18

This reply has been deleted

Message withdrawn at poster's request.

hadthesnip2 · 21/07/2019 13:22

Think yourself lucky.

I paid my ex £600pm maintenance for 4 years & had the kids eow. They now live with me & I've not had a penny from her since thrh moved in with me at xmas. She doesnt have them at all & left her job 2 months ago & is not working. She hasn't returned any of my texts & anything I know about her situation I find out via the kids.

SlightlyMisplacedSingleDad · 21/07/2019 13:27

He is paying towards the costs of his child @MamImHere. He has her half the time, and meets all the costs when she is with him. He also has her during the day on that one extra day, which is when the cists of meals / activities etc are incurred. What the OP has done is ensure that he has 50% of the waking hours, but she takes their daughter for the extra night simply to ensure that she ticks the box for just over 50% care. It's an articial set up, that ensures he has the costs of 50% care, but is still liable to pay maintenance. So he is meeting his half of the costs of their daughter, plus subsidising the OP's half.

It takes two to make a child. Both parents are respinsible for financially supporting the child. The artificial arrangement that the OP and her sllicitor came up with, ensures that all the costs of dad's half falls on him, plus subsidising the mum's half.

Mumsnet is full of people falsely claikjng that men only seek 50% to avoid paying maintenance. And those men are pilloried on here. Here, we have a mum freely admitting that she has manipulated residence on the advice of her solicitor purely ro ensure she still gets maintenance - but, somehow, that's okay?

Oblomov19 · 21/07/2019 13:32

I think OP is getting a hard time. She only posted a summary of the situation on her OP, only to keep it short, to the point.

She could have spent paragraphs telling us how much she loved her DD, but did she need to?

No. I assumed she did.

She asked a question about child maintenance.

All of a sudden she's being accused of just doing it for the money. That doesn't seem fair.

Oblomov19 · 21/07/2019 13:34

If you were a solicitor wouldn't you advise, most clients, to try and get more time?

Not just for the money!!

SlightlyMisplacedSingleDad · 21/07/2019 13:37

@oblomov19 - I don't, for one second, doubt that the OP loves her daughter. Or that she's a single mum who is doing her absolute best for her daughter. I get that - I really do.

But she jerself said "I was advised by my solicitor to keep a majority in the care of my DD". She is doing that for the money.

What I'm pointing out is that she has engineered an artificial situation where she isn't pulling her weight in financially supporting the child that she is jointly responsible for. She's deliberately set it up so that the majority ofnthe burden falls on the other parent. MN is rightly verh tough on men who do that (and i have no sympathy for them, either - I'm with MN on that!). But it goes both ways - mums need to pay their own way, too.

waterSpider · 21/07/2019 14:49

OK.

If he is questioning that he has shared care, and should not be paying maintenance, then what matters is the amount of "day to day" care, not the number of nights.

There is first a test of whether someone should be paying, based on total care. Only if someone is then deemed to be the non-resident parent will the number of nights come into the equation.
"It is not in dispute that the effect of reg 50(2) is that if a person can establish that he provides day to day care to no lesser extent, he will not count as an non-resident parent and a maintenance calculation would result in no liability"

See: www.stowefamilylaw.co.uk/blog/2017/08/03/determining-whether-care-is-shared-for-child-support-purposes/

But, I still don't think that a backdating claim has really been tried in these circumstances.

IsItBetter · 21/07/2019 16:17

Actually I think it is possible that he could win at tribunal. If day to day care of a child is equal no maintenance is payable.

IsItBetter · 21/07/2019 16:19

Sorry hit Post before I was meant to - day to day care is regardless of the number of nights spent with each parent.

There have been cases won at appeal and in the higher tribunal where the number of nights isn't equal but day to day care is considered equal.

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