csa advice

[balia]

My friend's husband has left her with two very small children. He walked out in July and has paid no child maintenance since. With great reluctance, he has paid his half of their joint mortgage and she has put the house on the market as she can't afford to buy him out. She has applied to the CSA but has recieved a letter saying he is applying for a reduction on the grounds that he is paying 'her' mortgage, that his pay is less than they have said it is(? Don't they ask for payslips?) and that he has 'contact costs' - he is now living 10 minutes away and sees the kids 3 times a week (no overnights, his new 'room-mate' doesn't like kids) and half the time cancels because he has 'urgent meetings'.

Will she get less money on these grounds? She is finding it really hard to make ends meet as it is - they have only assessed him at £60 a week.

They'll reduce the payments if the mortgage payments are a significant amount and reduce his pay to more than five percent I think it was.

However she could argue that its not guaranteed that he will pay the mortgage.

I told the CSA that if they weren't going to be deducting the mortgage payments form him directly then they had no rights to reduce the CS either. As if he chooses not to pay I'm left in crap and the CSA take FOREVER to reassess payments.

Do you mean reduce his pay by 5%? Net or gross? I guess all mortgage payments are significant but it is only half of the mortgage - she is paying the other half and all the other bills including childcare.

Good point about him possibly not paying - he has threatened to each time it is due and she is worrying herself sick. The house is on the market - should she tell them it is temporary until the house is sold - and I thought it was his legal responsibility to pay half?

If the CSA consider his mortgage contribution to be part of his CM, then wouldn't his share of the equity go down when the house is finally sold?

Does your friend have a solicitor? My ex tried something similar - and quickly started paying again when it was made clear via solicitors that he was putting his equity at risk.

Your friend needs a solicitor.

Relationship Breakdown and Divorce ? Advice and Links

General

Try to get familiar with the language of family law and procedure and get an understanding of your rights BEFORE you see a solicitor.

If there are children involved, their interests will always come first. It is the children?s right to maintain a meaningful relationship with the non-resident parent (NRP) ? not the other way around. Parents have no rights, only responsibilities. Shared residence means both parties having an equal interest in the upbringing of the children. It doesn?t mean equal (50/50) parenting/contact time - children are not possessions to be ?fairly? divided between separating parents.

A divorce will not be granted where children are involved unless there are agreed arrangements for finance, and care of the children (?Statement of Arrangements for Children?). It is obviously quicker and cheaper if this can be agreed but if there is no agreement, the Court will make an Order (?Residence and Contact? (which is likely to be called a Child Arrangements Order in future) regarding children, ?Financial Order? or ?Ancillary Relief? in the case of Finance). Information and links to these can be found in the Directgov link below.

Always see a specialist family lawyer!

Get word of mouth recommendations for family lawyers in your area if possible. If you have children at school, ask mums you are friendly with if they know of anyone who can make a recommendation in your area. These days there are few people who don?t know of anyone who has been through a divorce or separation ? there?s a lot of knowledge and support out there!

Many family lawyers will offer the first half hour consultation free. Make use of this. Don?t just stick with the first lawyer you find ? shop around and find someone you feel comfortable with. You may be in for a long haul, so it helps if you can find a solicitor you?re happy with.

If you can?t find any local recommendations, always see a solicitor who specialises in Family Law. You can search by area here:

www.resolution.org.uk/

You can also read good advice and find a family lawyer here:

www.divorceaid.co.uk/

Some family law solicitors publish online feedback from clients ? Google solicitors to see if you can find any recommendations or feedback.

Mediation

You will be encouraged to attend mediation. This can help by encouraging discussion about arrangements for children and finance in a structured way in a neutral setting. However, it only works if both parties are willing to reach agreement.

If there has been violence or emotional abuse, discuss this with your solicitor first. Always get legal advice, or at the very least make sure you are aware of your legal rights, before you begin mediation. This is important because while a Mediator should have knowledge of family law, and will often explain family law, they are not there to give tailored legal advice to either party - so it?s important to have that first.

Married or Living Together?

This is a key question, because if you are married, generally speaking you have greater protection when a relationship breaks down.

Legal Issues around marriage/cohabitation and relationship breakdown are explained here:

www.adviceguide.org.uk/england/relationships_e/relationships_living_together_marriage_and_civil_partnership_e/living_together_and_marriage_legal_differences.htm#Ending_a_relationship

www.advicenow.org.uk/living-together/

DirectGov advice on divorce, separation and relationship breakdown:

www.direct.gov.uk/en/Governmentcitizensandrights/Divorceseparationandrelationshipbreakdown/index.htm

Legal Rights are further explained here:

www.rightsofwomen.org.uk/legal.php#children_relationship_breakdown

I found these guides from law firms quite informative and easy to read ? there are others of course:

www.family-lawfirm.co.uk/uploaded/documents/Surviving-Family-Conflict-and-Divorce---2nd-edition.pdf

www.terry.co.uk/hindex.html

Finance

Before you see a family law solicitor, get hold of every single piece of financial information you have access to, and take copies or make notes. Wage slips, P60s, tax returns, employment contracts, pensions and other statements ? savings, current account and mortgages, deeds, rental leases, utility bills, council tax bills, credit statements. Are there joint assets such as a home, pensions, savings, shares?

If you have no access to financial information, or you are aware that assets are being hidden from you, then obviously you will not be able to reach agreement on finances. If there are children, as you cannot divorce without adequate arrangements being agreed on finance and children, you will have to apply for a financial order anyway. If there are no children, and you are unable to agree on finances, you will also have to apply for a financial order (follow the Direct.gov links below). This seeks financial information from both parties going back 12 months. So it is in your interests to act quickly once you have made the decision to divorce.

If you are married, the main considerations of the Family Courts where parties are unable to agree a settlement are (in no particular order of priority):

1.The welfare of any minor children from the marriage.
2.The value of jointly and individually owned property and other assets and the financial needs, obligation and responsibilities of each party.
3.Any debts or liabilities of the parties.
4.Pension arrangements for each of the parties, including future pension values and any value to each of the parties of any benefit they may lose as a result of the divorce.
5.The earnings and earning potential of each of the parties.
6.Standard of living enjoyed during the marriage.
7.The age of the parties and duration of the marriage.
8.Any physical or mental disability of either of the parties.
9.Contributions that each party may have made to the marriage, either financially or by looking after the house and/or caring for the family.

CSA maintenance calculator:

www.csacalculator.dsdni.gov.uk/calc.asp

Handy tax credits calculator:

www.hmrc.gov.uk/taxcredits/payments-entitlement/entitlement/question-how-much.htm#7

Handy 5 Minute benefit check, tax and housing benefit calculators:

www.moneysavingexpert.com/family/

Parenting issues:
www.theparentconnection.org.uk

Support for women

www.maypole.org.uk/
www.womensaid.org.uk/
www.gingerbread.org.uk/

Housing
www.england.shelter.org.uk/get_advice/families_and_relationships/relationship_breakdown

(Bear in mind that if you are not in England there is usually an appropriate link on these websites. There are significant differences in Scottish law and housing provision).

Tell your friend that they will only treat the mortgage as child maintenance if she tells them that she has accepted it as such. that will have a bearing on the amount of arrears that instantly accrue (the effective date presumably being some weeks ago).

On the other hand when he finds this out he might stop paying the mortgage and just pay the CSA assessment. Whether the court will expect him to pay more than CSA depends on a whole host of factors, and your friend needs to take some proper legal advice.

If he's not living in the house then paying the mortgage could equate to child maintenance. Maybe she would prefer to take over the mortgage & he pay a straightforward 20%. If so, she should tell CSA & also highlight that he doesn't have any costs of contact.

"paying the mortgage could equate to child maintenance" Only if the parent with care agrees.

They should only take into account mortgage payments into account if the Non Resident Parent isn't named on the mortgage. He cannot have an interest in the property for them to take them into account, so your friend needs to advise the CSA that he is named on the mortgage and set to receive money from the sale so they should not reduce his maintenance due to what he is paying. He may, as Collaborate says, stop paying the mortgage then though.

They will only reduce maintenance for travel expenses if the average travel costs exceed £15 a week. The costs for petrol they use are very low so I cannot see that he will get a reduction in maintenance on those grounds living so close.

They will only reduce maintenance if he has the children overnight at least once a week.

They will not give a reduction for travel AND overnights. Only one or the other.

If he is a Paye As You Earn employer (ie. not self employed) they will have had copies of his pay slips and averaged the earnings out over weeks/months and assess him on that. He cannot then say he earns less. They will go on the pay slip amounts, unless he has some deductibles that they agree to take into account. Petrol/company cars/expenses etc are not included.

If he says his income has reduced since the assessment, they will ask him to provide another 3 months pay slips in 3 months time and do another assessment. He should pay the current amount until then though.

In all the cases I've dealt with the CSA have only set mortgage payments against maintenance when the parent with care has agreed to accept it as such. That doesn't mean to say that different people in the CSA deal with this in different ways.

This is taken from the CSA's leaflet

"What factors may we take into account for nonresident parents?

making payments on a mortgage, loan or insurance policy
to repay a mortgage or loan on the home that you and the
parent with care used to share. The parent with care and the
children must still live in the house and you must have no
legal interest in it."

CSA GUIDANCE LEAFLET

But presumably he does have a legal interest in it if he owns it!

The OP says theres a joint mortgage on the property, so as he has a legal interest does this apply???

That's the point I was making. The friend needs to tell the CSA he is still on the mortgage and will receive money from the sale so he is not "paying her mortgage" as he has informed them and should not have his maintenance reduced.

I have told her to see a solicitor, several times, but she is so terrified she won't be able to keep up with the bills she is very reluctant to take on any extra expense.

They have now re-assessed and awarded him a reduction of £20 a week! I have forwarded the link re the not having interest in the house for her to object. They have said that his travel is 4 journeys (from his house to hers/nursery and back twice, pick up and drop off) this takes each journey to just over a £5, three times a week. He routinely cancels at least one of those each week.

Many thanks to everyone for advice.

The CSA shouldn't reduce his child maintenance payments if he is on the mortgage. Also (if the regulations haven't changed when I blinked) he can only claim a reduction for having the children overnight or travel expenses over £15/week, not both. However if he pays CM he won't necessarily have /be able to pay the mortgage so the friend may be no better off having gone to the CSA. I do hope the friend has taken legal advise because there may be alternatives to selling the house.

Just checked and the costs of contact still shouldn't be taken into account when the NRP is collecting a child for overnight stays because the contact has already been taken into account.

But he isn't collecting the children for overnight stays - he has refused to have them overnight. In fact she has had to pressure him into seeing them 3 times a week; at first he was talking vaguely about seeing his DS only for a few hours once a week.

I have said she should get a solicitor. She cannot afford to take over the mortgage and can't take the stress of being reliant on him paying his share much longer - I think she is hoping for a quick sale and be financially more independent.

There are thresholds and if there are no overnight stays the first £10 or £15 of travel expenses should be disregarded respectively if the NRPs income is less than £200 or more than £200.

As I said, go to the CSA & set them straight & then he will no doubt stop paying the mortgage (or maybe not!!)

When she contacted them WRT the guidance in their own booklet about not counting mortgage payments as CM if he is on the mortgage, they told her the law had changed and a mortgage could be counted as a previous debt. When she pointed out this was not mentioned in the booklet they said the cost of reprinting or sending out an update was prohibitive.

Very useful info about the thresholds, though, as he earns more than £200 and they've calculated the costs at just over £15 - could I trouble you for a link to that info?

I would not be surprised if she rang and spoke to someone else and got a completely different answer. I would ring again or even write in and ask for a letter from them explaining that mortgage payments can be taken into account when an NRP is named on the mortgage. Or I would contact my local MP and get them to write to the CSA asking for written explanation. MPs seem to kick the CSA into action.

The CSA will be reluctant to send anything in writing if they are not legally correct.

Balia, the travel expenses is in the same leaflet I linked to above. It states :

"What factors may we take into account for nonresident parents?

If you are a non-resident parent, we may look at the amount of
child maintenance again if you have special expenses of more
than £10 a week, or £15 if your income is £200 or more, for:

? keeping in contact with your children (for example, if the
parent with care has moved a long way away)"

They should disregard the first £15 and then work out how much the travel expenses are over and above that, then take that off the net income and apply the same percentages. I honestly cannot see how he is getting much reduction for the travel costs. That £20 reduction must mostly be due to the mortgage.

You are absolutely right, she has got more info now - he applied for travel costs and for the mortgage contribution and but didn't get a reduction for the travel - she assumed he had because the money had gone down by (proportionally) such a large amount.

I will pass on the advice about writing in and contacting the MP, many thanks.

It wouldn't be the first time, I think the CSA are wrong. Under r14 Child Support (Variation) Regulations 2000 a variation can be considered on the basis of mortgage payments if the property was the home of both the non-resident parent and parent with care when they were a couple and remains the home of the PWC and the NRP has no financial interest in the property.

As far as I'm aware there has been no change in the regulations and perhaps your friend should demand to speak to someone more senior and better trained and ask them what law has changed and to confirm the answer in writing.

I second the fact that the CSA can interpret the law in a variety of ways - ask for everything in writing as it seems they do check, then!

The Act is in a state of flux and it's difficult to understand what has come in to force and what has yet to come in to force. There is a new s41C to the Act that gives the Sec of State power to treat a liability as satisfied on the basis that it would be unfair or unjust to enforce the arrears.

It came in to force on 26.11.09.

Regulations (CHILD SUPPORT (MANAGEMENT OF PAYMENTS AND ARREARS)
REGULATIONS 2009) state:

(3) A payment is of a prescribed description for the purposes of section 41C(1)(b)of the 1991 Act if it was made by the non-resident parent in respect of?
(a) a mortgage or loan taken out on the security of the property which is the
qualifying child?s home where that mortgage or loan was taken out to
facilitate the purchase of, or to pay for essential repairs or improvements to,
that property;
(b) rent on the property which is the qualifying child?s home;
(c) mains-supplied gas, water or electricity charges at the qualifying child?s
home;
(d) council tax payable by the person with care in relation to the qualifying
child?s home;
(e) essential repairs to the heating system in the qualifying child?s home; or
(f) repairs which are essential to maintain the fabric of the qualifying child?s
home.

You're welcome.