CMS deduction for mortgage

[FallenFigs]

Can anyone advise on this query. It’s slightly complicated but I’ll try and keep it simple.

I live in the family home, DC with me 60% of the time. The deeds and mortgage are in DH name. We originally agreed on separation that we would each pay 50% of the mortgage (as it is still an asset of his) and he would pay CM at the rate according to the calculator. He has since scrapped this agreement and stopped paying CM. I have therefore stopped paying him 50% of the mortgage.

I am aware this is a slightly complex arrangement but it is one we agreed to at the time and as an interim measure whilst financial separation was agreed via divorce process.

however his unilateral decision has left me suddenly about £150/month worse off.

I know that if I make a claim to the CMS they will deduct the mortgage. Will let deduct 100% of the mortgage, or a proportion?

so for example if the mortgage is £800, and the CM according to the calculator and his earnings is £700, would they effectively decide he has nothing to pay?

And, there is a timing question. If I make a claim now (with a 100 week processing time) that decides he has nothing to pay, and we then untangle the mortgage via divcorce process, do I have to make a new claim with 10 week lead time to update the mortgage liability (to none for him) or would I be able to refresh any existing case with a shorter lead time?

If he’s paying 50% of the mortgage, are you paying 50% of his rent?
CMS will tell him how much he has to pay, but don't factor mortgage payments into this figure. If the mortgage is not paid, the house will end up being repossessed. I’m pretty sure no one whats that to happen.

You have both over complicated this.

If you are living in the house & getting the benefits of that - you are responsible for paying the mortgage (I presume you aren’t paying 50% of his rent)?

You should claim CMS. It will be backdated from the date of your claim.

It is a common misunderstanding that CMS will not factor in contributions to the mortgage when assessing the amount that a payer must pay. This is not correct. Payment of a pre-separation mortgage will be deducted from CM (eventually; even some of the CMS employees misinterpret their own rules).

It is far cleaner as @NorthernSpirit says for the OP to pay the mortgage and the ex to pay CMS. This can also be a useful way for the OP to demonstrate that they can afford the mortgage if they wish to stay in the property. Depending on a non-resident ex to pay part of the mortgage points to the mortgage being unaffordable and the house needing to be sold.

Agree with others you have hugely over complicated

You cannot expect him to pay CMS and a mortgage for a house he is not living in

You need to pay the mortgage - or agree the house is sold if you cannot get the mortgage transferred into your name

He needs to pay CMS as the given rate

Ok so for clarity, I haven’t over complicated it. It was basically the only arrangement he would agree to in order to move out. And that was my priority at the time, until financial separation can take place.

I can afford the property post-financial separation as I will require a smaller mortgage.

Currently, if I pay 100% of the mortgage where he still owns 50% of the asset, he is benefitting from that capital repayment, hence the 50/50 agreement.

i could offer to pay the mortgage and to receive CMS in return but this would leave me further short. If this were for 3 months, it’s doable, but he’s also dragging his feet on financial disclosure and would have even less incentive to produce that if he knew he ‘had one over on me’ by making my life harder.

No, you are paying the mortgage because he has to rent whilst you enjoy sole occupancy. Your housing expenses as a couple were one mortgage. As a separated couple it is one mortgage and one rent. You cannot expect him to pay all of his housing costs and half of yours as well. If he pays half the mortgage then morally you should pay half his rent to share that dead money burden.

Sure but he’s not renting. It is a slightly complicated situation as I mentioned. Really my query is if the whole mortgage is deducted or if it’s pro rata’d in any way,

If he was paying half then that amount would probably be deducted from CMS although its not entirely predictable. You should at least proceed on the basis that it is the worst case scenario for you and the most likely scenario too.

Him not renting isn't really relevant on the whole. You are getting sole use of the property so normally you would be expected to pay the mortgage and him to pay something in the region of what CMS would calculate.

The solution is to sell asap. All the time you live in a house he jointly owns it's very complicated because he in theory should be paid rent for his half

@mitogoshigg thar would leave me with essentially zero levers. Most of the matrimonial asset value is equity in the house. It’s sold, he gets all the cash and I likely never seen him again.

Again, I can buy him out thus relieving him from the mortgage but this is dependant on him bringing forward details of other assets which he’s refusing to do.

so my question is really one of timing. Let’s say we agree a transfer of the property tomorrow, if I then raise a CMS claim I am waiting 10 weeks. If I had raise that 10 weeks ago, and the finding was zero for him to pay due to the mortgage, if we then transferred the house tomorrow would I get a quicker result from CMS having already made a claim, or would I go back to the back of the 10 weeks queue?

I'm a bit concerned by your first paragraph. The purpose of financial settlement is not to give one party "levers" over the other and I would be quite alarmed if it was. If you can buy him out, then you will be expected to do so or sell. There is no way that a court would sanction any kind of ongoing ties if they were not absolutely necessary.

He will of course be expected to disclose his assets too. As for the queue, the CMS will backdate a claim to when you applied so it would be pointless for him not to pay the equivalent immediately because he would build up arrears. You could also put something in the consent order that he pays X until CMS have ruled or even agree maintenance through court order and leave it to him to apply to CMS a year later.

The lever is in reference to having a lever to get him to negotiate on financial settlement, not after. See earlier comments on how he unilaterally changes agreements and is extremely difficult and unreasonable to deal with.

If I suggested/initiated a sale he would likely leave the country with all the equity.

Again, I can buy him out in the context of a reasonable division of overall assets. I have had legal advise on this.

Presumably to agree maintenances through a court order requires £££ on legal fees. He’s not going to agree readily to that.

Well no, you could agree child maintenance by private arrangement in a consent order. It can be overridden in a year so he wouldn't be tied in for long and the rate can match CMS.

You will need a consent order anyway so it shouldn't cost any more to do.

Yes but why would he agree to that?

Living in the FMH you have the benefit of occupying the whole asset for as long as you are negotiating and are able to use it as lever. The payment of the mortgage, is what you pay for a home. You are also sitting on his capital which is detrimental to him by preventing him buying and having a home of his own. You also have a lever to use in negotiating an advantageous settlement.

There is no point in getting outraged that he has called time on your levers by shifting a few of his own.

Selling the property today won’t help either of you as you won’t be able to get the money until you agree a financial settlement.

Start the CMS claim, pay the mortgage whilst you are living there and complete your negotiations. If you have evidence of hidden assets provide that evidence to the court.

You need to stop playing games with each other. Because you will never stop trying to get one over on each other.

The win for you is to bring this to an end and get on with your life. It is better for your children.

@LemonTT there are various assumptions in your post that are incorrect. He has another property, for a start. I’m not stopping him using capital in that sense.

I’m not outraged, I absolutely want this sorted and have produced all relevant information. I absolutely want this to end. Requires both parties though sadly. And by I must ensure I don’t score an own goal in the process.

File Form A and be done with it then. If he's a pain in the arse who is delaying then there is no point hanging around.

Don't worry too much about legal fees, getting served is normally enough of a kick up the backside to get the other side moving.

Oh how is Form A different to an application for a financial remedy application?

You are still tying up his capital and using it as a lever. You said this yourself. He has just found his own retaliation. It’s stalemate.

Not really enjoying being blamed for this, as I have said I’ve said I would rather move towards financial separation but to do so requires film info.

I don't think you are being blamed. You're getting robust advice about an undesirable situation for both of you.

Same thing 😊

Oh that’s good, that’s in progress.

Yup look I’m sensitive about it as I know it’s a mess and I’m doing my best to get it sorted. Just trying to ensure I have all info at my disposal too.

Agree with lemonTT

you pay the mortgage as you have sole benefit of the property while he has vista to live elsewhere. His investment remains in the house as a result so you need to move past the fact he retains his share. Thats correct and right as you’re getting currently 100% use of his capital while he is not able to use it to invest elsewhere while you remain there.

you pay the mortgage and put in a claim for cms.

complete form a, attend mediation if not done so already and push ahead with divorce process

btw how will your mortgage get smaller if you have to buy him out ?