Consent Order and maintenance question - any family lawyers?

[TiredAndConfused22]

Hi

This is a question for any family lawyers out there if they would be kind enough to take pity on my tiny sleep-deprived brain.

I've recently been to a solicitor to take advice on putting a proposal to my xh for our financial settlement. What I'd really like to do is tie the child maintenance amount to his net income so that it goes up and down with his income (which varies each year due to a large proportion of his income being a discretionary bonus). This would be good for me and the kids as it would allow us to have a small share of any good bonuses, but also would please him as he is worried about agreeing a fixed amount in case his bonus doesn't appear in coming years.

She started saying that this would be ok as she could put a 'recital' on the order saying that x was the base amount if child maintenance, but that it would vary up and down with xh's income. But then she suddenly said that no, her advice was to agree a fixed amount based in his income this year, that would rise with RPI, and that was that. I asked why, as it would mean us not benefiting from any future rise in his income, but she just said it would be 'simpler' and avoid problems in interpretation down the line. I don't really understand why this is complex, and now I'm worried she just doesn't want the extra work of doing something not completely usual in the consent order. I did try to ask but she clearly felt the meeting was over and I didn't feel able to push it.

Can anyone give their opinion on whether linking maintenance to income is problematic? I know I could try another solicitor but my 40 mins today cost me £300 and I can't really afford to change to another... TIA

Is the fixed amount this year more than what he would be obliged to pay via the CSA and their calculation?

After a year of the order for child maintenance either one of you could apply to the CSA for a schedule. Maybe she was looking ahead to that and figured you'd get more up front in the first year?

IANAL.

I was advised any child maintenance amount set in a consent order would only be valid for a year after that time either party could apply to the CMS to set that amount. My solicitor told me that as a result courts prefer for parents to organise the amount themselves.

Thanks guys, I don't think it's related to the one year thing, as we'd already discussed that and she said he could agree within the consent order not to revert to the CMS, or if he did to make up the difference. (I don't think he'd do that anyway although I suppose things change.) Yes the amount would be more than the CMS calculated though not very much...

Tired is she a family law specialist?

Yes, and recommended by a friend so hopefully good .

1. Yes, I believe whatever is in the consent order for child maintenance you can overturn via the CMS a year later.
2. I think the reason for the objection as the sum paid is supposed to relate to the needs of the child (or spouse for spousal maintenance) rather than what someone might earn. So if father is on £20m a year and child needs are £15k a year then it's £15k not x% or £20m and if someone gets a big pay rise or has a large pay cut that does not change the amounts the children need. I don't think the other side - the husband - would accept the consent order being drafter as based on his earnings. If I suddenly doubled my earnings I would not want to pay my children double (they live with me and our consent order says I support them 100% and pay 5x school/university fees). if I earn more that does not mean the children need or should get more.

However there is nothing to stop you putting the fixed figure plus inflation but agreeing verbally with your ex that you will not seek to amend that figure if he will agree to pay you more or less based on the formula you use between you which could be different. In other words if the court order says £20k a year but a parent chooses to pay £100k that's fine and if both parents agree £10k is fine that year that can be paid too.

Thank you Greengrow. That is a good point about us being able to agree something outwith the consent order, but with the advantage of having something legally agreed for the purposes of mortgage applications, peace of mind etc.

However, I kind of assumed that the principle of the maintenance following the income made sense in terms of that's what the CMS system does. Also, it would seem slightly sad for the kids if in the future the household and lifestyle they live in 12.5 days out of 14 is quite frugal whereas their dad lives in luxury. Mind you, I am biased I suppose seeing that mine is the former! ;-)

I'm not a family solicitor but my understanding is that linking child maintenance to income is fraught with difficulties that can give rise to problems later - what constitutes income, is it net or gross, does it include untaxed income or unearned income? how is it verified, by whom how often? etc etc. Therefore to avoid ambiguity it is common for child maintenance to be agreed at a flat rate in a consent order.

Normally after 12 months of the date of a consent order either party to the agreement may apply to the CMS, the CMS calculate the amount of child maintenance, notify the court and the consent order ceases to have any effect with regard to maintenance. Exceptions are when there is a court order predating March 2003, there are step children, one parent lives abroad, orders for top up payments if the paying parents income exceeds the CMS capped amount of £3000k/week gross income, school fees or to cover expenses related to a child's disability. Also the CMS cannot process a claim when parents share care exactly equally 50:50 so the courts aren't notified and a consent order remains in effect.

Of course parents can agree between themselves how best to meet the needs of their children without reference to the CMS rules and regulations. The CM Options website has useful information and tools to assist parents come to an agreement. If parents cannot agree and go through the CMS there are reams of legislation and rules regulating the CSA/CMS that define income, how it is verified etc.

I thought Tired's point when I wrote my post. It is interesting that the CMS (CMA) formula was based on say 25% of non resident parent's net income for 3 children 15% for one etc. In our case where the children chose to live with me and I earn 10x what their father does our order says whoever they live with I pay all the school and university fees for five which of course I would be happy to do whoever they live with and would have also paid had we stayed married. however I think the CMA rules have always been built on an upper cap. So that would be why our order says I pay so very much more than the CMA formula might provide. Whereas most parents earn about £25k a year so a percentage of net income for the non resident parent is probably fair enough.

I have always known that one year after the divorce I could have gone to the CMS (or before then CMA) and asked for 25% of very little from their father but I did not bother even though we had a clean break with my large capital payment to him to buy out his claim to my assets and his claim for maintenance for life.

It's an interesting general issue. If I do very well and earn a lot and their father continues in the same full time job with no career sacrifice why should the lower earner spouse on divorce be entitled to lump sums or maintenance to keep them to the same standard when they did not earn the money and gave up nothing and were just lucky their spouse did well? The principles used to be about reasonable needs - a house and support for the lower earner spouse rather than you can have a massive sum because your spouse earns more. All this is very irrelevant as most divorcing couples tend to be wife on just about nothing, husband on £25k ish and to keep the children housed wife keeps house and children until they turn 18 then split proceeds.

I suspect the answer is to ask the solicitor why you cannot include the formula you and the children's father wants in the consent order if it works for you both or of it is the sort of clause a court might dispute rather than just rubber stamping what has been agreed.