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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

CMS calculations and mortgage payments

44 replies

FallenFigs · 21/10/2024 10:29

hoping for some perspectives as struggling to get a clear answer on this.

me and DC live in the family home
stbxh lives in a property he purchased. He would only move out on breakdown of marriage to an owned property, refused to rent.
both properties and mortgages in his name. Effectively on large mortgage with sub accounts, smaller amount on FMH and larger on his new place.

For 18 months, whilst going through mediation, he has paid CM at what would be the calculated rate and I have paid him 50% of the mortgage for the property in which I live - FMH. Informal agreement. I have paid all bills, insurance, repairs on FMH in that time.

he has now stopped paying CM. I have stopped paying him 50% of the FMH mortgage in response.

he says I now need to pay 50% of both mortgages as they are shared assets.

if I go to the CMS, which (if any) mortgages will they deduct from his calculation? The help page says none, because he retains a legal and beneficial interest in the former family home until financial separation is finalised. Is this correct in practice?

and is there any way I ‘should’ be paying 50% of the mortgage on his place too?

I’m going in circles on this.

Solicitor dealing with overall separation isn’t best placed to deal with the CM question. I need to make sure I don’t score an own goal.

OP posts:
Chowtime · 21/10/2024 10:38

The cms is correct , mortgage payments aren't deducted from the cms payments and no, you shouldn't be making any payments on the house he lives in

Original poster
FallenFigs · 21/10/2024 10:46

Thank you. Are there any rules or precedents I can reference here?

he is insistent that I should pay half of the total mortgages.

he is deluded, and an utter arsehole, but I need to combat with evidence and legal requirements wherever possible.

OP posts:
Chowtime · 21/10/2024 10:53

You don't need to do anything! Don't jump just coz he wants you too. If he doesn't pay the mortgage then it's his credit score that will be wrecked, not yours.

I'd focus on putting a claim in to the CMS and finding somewhere to live. Put your energy into that and leave him to sort out the mortgage mess.

RandomMess · 21/10/2024 10:56

If the mortgages are in his sole name just ignore him altogether.

Claim for CMS.

Have you registered your marital interest on all the properties (you should).

The houses are assets and the mortgage is a way of investing in them and increasing their value!

RandomMess · 21/10/2024 10:58

Just reread, the mortgages are in his name. Just ignore him and claim for CMS.

He sounds like a bully Flowers

Original poster
FallenFigs · 21/10/2024 11:07

I’ve got a Home Rights Notice on the FMH, is that the same thing @RandomMess

He’s an idiot. He’s likely scoring a huge own goal as he has a commercial property and I can ask the CMS for a variation to take into account the income he could receive on that.

just checking I had my bases covered. Thank you.

OP posts:
unsync · 21/10/2024 12:10

What's the status of your financial settlement? Put in a claim for Maintenance Pending Suit, this should focus his mind.

Original poster
FallenFigs · 21/10/2024 12:28

i have just made the first divorce application.

we have been attempting mediation but he is not producing the required financial evidence.

can you expand on the Maintenance pending suit @unsync

OP posts:
RandomMess · 21/10/2024 14:30

I would maximise the CMS claim including the variation getting divorced from a bully is very expensive.

You can also use it as a bargaining tool to say once finances are sorted then you will consider a private maintenance agreement. This may help focus his mind.

Has he been emotionally or financially abusive? If so get signed off from mediation and move on with court.

Original poster
FallenFigs · 21/10/2024 15:22

@RandomMess what would constitute financially abusive? He said in mediation he would continue to pay for two months, and has not. He unilaterally stopped an informal agreement that has been in place for 18months.

so that leaves me in the lurch. He has also stopped an informal agreement we had to each pay 50% of extra curricular stuff.

does that count?

OP posts:
RandomMess · 21/10/2024 16:25

I doubt it unfortunately. Just phone up CMS today and start your claim.

If he defaults on the mortgages it affects his credit rating and risks the properties being repossessed.

Snorlaxo · 21/10/2024 16:30

As only his name is on the mortgages, it’s his credit rating that will be trashed if the mortgage payments aren’t made.

Original poster
FallenFigs · 21/10/2024 16:59

Just to be clear, I’m prepared to pay 50% of the mortgage on the house in which I live, until financial settlement is reached.

however there is certain logic that if both properties are in his name and both classified as matrimonial assets, then I should pay 50% of the second mortgage, as I technically have a legal and beneficial interest in that. Does it not cut both ways? And if not, why not?

im glad it doesn’t, of course, but need to check I’m not sabotaging myself here.

OP posts:
millymollymoomoo · 21/10/2024 17:57

legally you’re not liable for the mortgages

you can claim cms- of course if he’s paying two mortgages in full and simply cannot afford the cms on top you risk not receiving it or him defaulting on mortgages - which wont necessarily help you if one ends up with repossession as example.

its fair you pay towards your living costs while getting sole use of that asset ( often in that case people are excited to pay 100% of costs) even though legally the mortgage is not yours, it’s fair to pay ‘rent’ to live there

what’s happening with the divorce /what overall outcome are you expecting? From a pot perspective do you understand the assets and debts involved ?

Completelyjo · 21/10/2024 18:00

He has stopped CSM but are you saying that’s because he’s paying 50% of the mortgage for the property you are living in? He likely wouldn’t have been obligated to pay for 50% of your housing on top of CM.
Which amounted to more the CM or half the housing?

Original poster
FallenFigs · 21/10/2024 18:23

Yes I am absolutely prepared to be repaying to live in the FMH and have been doing so - 50% of the mortgage and he still has a legal/beneficial interest in the other 50%

however his action to unilaterally and without warning removing the CM has left me unable to pay the mortgage to him. He also also stopped paying various clubs and other ‘extras’ so I have absorbed those extra costs.

Yup I understand the assets and debts.

@Completelyjo this is the point I’m getting stuck on. The CMS definitely would not make a defection for him for a mortgage he is paying in which he has a legal and beneficial interest. Which contradicts the ‘not being obligated to’ point in your message. Is that that, he’s not actually obligated to pay my housing costs (bills, insurance etc, and in the case of rent, that) but he does have to pay half a mortgage that he has a legal and beneficial interest for all the reasons PP have said?

OP posts:
RandomMess · 21/10/2024 18:25

There is the moral and legal argument here.

Why has he never put you on the deeds?
He refused to move out and made things difficult.
He refuses to fill in the financial paperwork.

He is doing everything to delay the financial settlement and cause you financial stress. He has an obligation to fund his DC but he's focusing on making you suffer.

At this point the moral arguments go out the window as all his behaviour seems to be about stopping you the financial settlement that you are entitled to and need. He isn't be fair or pleasant or reasonable.

Completelyjo · 21/10/2024 18:28

this is the point I’m getting stuck on. The CMS definitely would not make a defection for him for a mortgage he is paying in which he has a legal and beneficial interest. Which contradicts the ‘not being obligated to’ point in your message. Is that that, he’s not actually obligated to pay my housing costs (bills, insurance etc, and in the case of rent, that) but he does have to pay half a mortgage that he has a legal and beneficial interest for all the reasons PP have said?

Well in theory he has to pay 100% of his mortgage, but he doesn’t necessarily need to let you live in it. It’s a lot for him to pay his housing costs, half yours, CM and then the extra clubs and stuff on top. You would be unlikely to have had a settlement like that for long. You will need to have a plan for how to house yourself with the only extra being CM.
18 months is a long time for mediation, what us the reason you haven’t come to an agreement yet?

ShinyShona · 21/10/2024 18:32

Chowtime · 21/10/2024 10:38

The cms is correct , mortgage payments aren't deducted from the cms payments and no, you shouldn't be making any payments on the house he lives in

This is a common misunderstanding. Mortgage on the FMH that was a joint debt before separation is treated differently elsewhere in the regulations.

Even CMS employees seem to be unaware of this which is why the misunderstanding is so widespread.

However, in this particular case he is the only person named on the mortgages. It's his business whether they are paid or not although it might not work out well for the OP if he decides that they can be repossessed.

Maintenance pending suit has been mentioned - we have no idea what the incomes of the parties are and MPS is rare so I'm not really sure why it was brought up?

ShinyShona · 21/10/2024 18:42

Just to add to the above a reference. The Child Support Maintenance Calculation Regulations 2012, Prior Debts. Section 65(3)(h). Read it very carefully.

Original poster
FallenFigs · 21/10/2024 20:03

It’s taking so long because he is a financial car crash and is unable/unwilling to produce the relevant documentation.

He also has debt that he has incurred since separation.

Yes I can see the moral and legal arguments don’t exactly align.

He resents I live in the FMH and maintains he cannot ‘afford to pay for two households’. He’s doing nothing of the sort. My bills, insurance, repairs are far higher than he place on his place. He pays 50% of the liability on an asset he currently owns 50% of. Not the same thing.

With a reasonable financial settlement I can take on the FMH. Except he has to come to the table for that to happen, for him to be relieved of that debt.

OP posts:
Original poster
FallenFigs · 21/10/2024 20:04

ShinyShona · 21/10/2024 18:42

Just to add to the above a reference. The Child Support Maintenance Calculation Regulations 2012, Prior Debts. Section 65(3)(h). Read it very carefully.

Is there a way to summarise this? It is all these different documents/perspectives that make my head spin.

as I have said before I need to be careful not to score an own goal.

he can’t evict me. He could go bankrupt, and that would be an issue

OP posts:
ShinyShona · 21/10/2024 20:09

FallenFigs · 21/10/2024 20:04

Is there a way to summarise this? It is all these different documents/perspectives that make my head spin.

as I have said before I need to be careful not to score an own goal.

he can’t evict me. He could go bankrupt, and that would be an issue

Show quote history

Depending how long you intend to demand he pays 50% of your housing costs, he could well decide bankruptcy is the easier option. It is certainly a risk and his behaviour seems to heighten that risk.

In summary, if he was paying towards a mortgage that was taken out in joint names before separation, then what he was paying on the mortgage would reduce his CMS calculation. A lot of people claim it doesn't because of a separate rule in the regulations for post separation mortgages.

However, your situation is different because only he is named on the mortgage. However, if the house is a marital asset and the debt is for that asset then I think CMS would treat it the same. So, in summary, no, you should not get both.

Original poster
FallenFigs · 21/10/2024 20:20

ok I’ve just skimmed the regs and it seems to read that a mortgage of this type would be treated as a special expense for a variation eg the debts has been incurred for the joint benefit of the non-resident parent and the person with care (ie both of us). Is that what you’re saying?

To be clear, I am not demanding he pays 50% of the mortgage. I would like to achieve settlement, relieve him of his 50% of this mortgage and receive CM. I can balance the books this way.

So, if I make this claim do I risk having the deduction for his ‘other’ mortgage taken into account?

OP posts: