Varying a consent order for CM

[Secretsout]

I'd be very grateful for some advice as I cannot afford further legal advice.

Our consent order was sealed in August last year. The terms came in to effect in Jan this year (on sale of FMH)

We agrred a private arrangement for CM and it was included in the order. To be paid until each child is 19. Ex is a high earner (around £200k pa) and the amount we arrived at was based on the CMS website based on kids going to his 1-2 nights per week. However, he earns considerably more than their upper earnings limit so he does pay less than the minimum towards them.

We no longer have any contact whatsoever as he is very controlling and abusive. DD has no contact with him and DS has seen him on average once per week. Ex refuses to pay for anything whatsoever other than CM, will not buy clothes, give spends etc. I'm sure he is going to try to renage on the order by going to CM as he can then pay less than he is now.

My questions are:

1. The order can be varied after 1 year. Is this from when it was sealed or came in to effect?

2. If ex goes to CMS to pay maintenance do I then need to take him to court to apply for a variance to keep the existing terms? (Especially as the current order is to age 19)

3. If i need to seek a variance to maintain our order, how do I go about this and is it something I can do myself?

Be grateful for any advice or experience with this. TIA

It is all but impossible to advise without seeing the papers.

The year runs from date of order or of decree Absolute, whichever was later.

Thank you mrsbert in the recital it states....

1. although the parties accept the jurisdiction of the CMS cannot be excluded for more than one year, neither party has any intention of applying for a CMS calculation of the periodical payments due under paragraph X

2. and upon the parties agreeing that the initial rate of payment by the husband to the wife in respect of child support payments set out below is based on the children spending 1-2 nights per week with the husband

3. and upon the parties agreeing that they will recalculate the rate of payment in accordance with the Child Support regulations as varied from time to time, during the first year of payments, if the children spend more or less time with the husband.

Then the order states:

Child periodical payments order. By agreeing between the parties the respondent shall pay to the applicant periodical payments for benefit of the children of the family. Payments shall be at the rate of £xxx per calender month (£x per child per calender month), payable monthly in advance by standing order. Payments shall start on the date of completion of the sale of the family home and shall end on:

a) each child respectively attaining the age of 19 years or ceasing full time secondary education whichever shall be the later, or
b) a further order.
The court may (prior to expiry of the term or subsequently) order a longer period of payment. In the event of a CMS calculation being carried out, from the effective date of the CMS calculation, periodical payments made under this paragraph for the benefit of the children shall be received by the applicant on account of any sums falling due under the CMS calculation.

Does this help with advising me?

It's really not something that can be tackled on here.

You need to see a solicitor. Possibly a different one to whoever drafted the order, because they may have fucked up by agreeing a clean break.

There is nothing you can do to prevent an application to the CMS to reassess.

oh mrsbert now I'm really worried by your reply. I really cannot afford legal advice as my divorce costs nearly broke me. I do know my sol was crap as people since have told me she was.

Ex still has his mega income and I have the kids full time with his minimal contribution.

I can only hope that he does not go to CM as this will leave me really struggling.

I just wanted to know how best to tackle a potential attempt by him to reduce his contribution if he goes to CMS

To Secretsout,

As MrsBertBibby has already stated the Consent Order with respect to Child Maintenance if effective for 12 months. After that either parent can apply to the CMS for an assessment. Once CMS have made their assessment the Child Maintenance figure in the Consent Order is effectively overruled regardless of which direction it goes, up or down.

However, i recall that CMS only deal with earnings up to 3K/week. If NRP earns more than 3K/week I think you can apply to the courts for additional Child Maintenance on the amount above 3K/week?

Good luck

I haven't much to add but as a mother who earned more than my ex our consent order said I (the higher earner) pay school and university costs even over age 19. If your ex is on £200k those kind of expenses higher earners have may be could be paid. I have a vague recollection too that if you are on a very high income then you can use the court to get more child support.

This case report may be out of date by now but it seems to confirm you might be able to use the courts to get higher orders for child maintenance.
www.clarkewillmott.com/blog/child-maintenance-for-high-earners-going-beyond-the-formula/

I think in your first post where you say the fathers pays less than the minimum you mean pays more currently than is obliged to do so.

I wonder why the order only refers to secondary education in your quote above?

I'm not sure that there's anything to go on to suggest there should not have been a clean break in this case.

Clean break or not, does the NRP not have to pay Child Maintenance for child until child reaches 18 regardless?

As per the CMS booklet on "How we work out Child Maintenance" it makes reference to a limit of 3K/week. If NRP earns more than that then RP can apply to court for additional child maintenance. How they would calculate I don't know.

I'm not sure that there's anything to go on to suggest there should not have been a clean break in this case.

The very fact that maintenance was set at higher than CMS strongly suggests to me that there should have been a global order including spousal maintenance. Also CMS is until 20, not 19.

But neither of us can say without seeing the papers.

The very fact that maintenance was set at higher than CMS strongly suggests to me that there should have been a global order including spousal maintenance.

Of course there is a duty placed upon the court to try and achieve a clean break, and we know nothing of the capital settlement.

Thank you all for your responses.

We did have a clean break and I received a large portion of capital. I also received Spousal maintenance for myself for a number of years - separate to CM.

My issue is that when the order was worked we were on speaking terms and the plan was for us to agree any monetary changes privately. CM was to continue to age 19 which is 1 year longer than the current legal requirement through CMS of 18. My problem is I am now no contact with him and I fear he will apply to CMS so that he only had to pay to age 18. He has probably also increased his pension contributions massively to bring his income, for calculation purposes, down.

If he does apply to CMS I need to understand how I counter this and apply to the court for them to make a decision?

And to add.....maintenance wasn’t higher than CMS rates. It was their rates we used even though her earns £50k pa more than their maximum income levels of £3000 per week

If you received substantial assets and spousal maintenance then surely you can afford proper legal advice?

A good solicitor is well worth the money.

To OP

In your reply to mersbert you say you can't afford legal advice due to divorce costs, but you now say you received a large portion of capital and Spousal Maintenance?

You can apply to the Court for extra CM based on fact that Ex Earns more than £3000 per week, but what's to say they will agree that you are entitled to more if you received a large portion of capital and SM? Maybe the SM was awarded on basis that ex did in fact earn more than the CMS upper limit of £3000 per week?

Paying into a pension would reduce your ex's gross income for the purpose of calculating CM. Excessive contributions can be classed as "Diversion of Income" under CMS and you could apply for a Variation.

However, there is no hard and fast definition of "excessive". If your ex is not far from retirement some may say it makes sense for him to pay as much into a pension as he can?

Likewise if you received the lion's share of the capital, some may say that is another reason your ex should aim to maximize his pension as he has little assets that can be disposed of to support himself in retirement?

If the order includes spousal maintenance, then by definition it isn't a "clean break"!

You really need to take it either to your old solicitor, or a new one, to establish what happens if the CM goes down. Usually, I would expect to see a provision that automatically adjusts so the maintenance overall remains constant, but that isn't always what people agree.

Yes if there were SM it was not a clean break.

If this is more about psychology than law as things often are you might find he is happier to pay costs directly to the bill that needs paying eg I am happy to pay my teeangers' university hallls rent direct to the university but it does not not touch their grubby little paws in the meantime in case it doesn't end up where it should be so eg he might be happier to pay something direct to someone billing something to the child than via you.

But wouldn't you be getting around 20k a year, even if it was just through cms. I don't really see how that is not enough tbh. I can see why he doesn't feel the need to provide for extras.

I agree with Mrs BertBibby. SM is meant to plug the gap between what the receiving partner needs and the income they already receive. So if one source of income went up or down the SM would be adjusted so that total received remained the same. Hence the term Global Maintenance.

To checkm8

CM is based on paying parents income. So the more they earn the greater the CM. Even is CMS is at its highest possible (ie someone earning 3K/week) SM may still be awarded if Courts consider that paying partner can afford to pay and still have a good standard of living themselves. No set rules for SM. All down to availability, needs and Court decision.

Guess some ex wives are more lucky than others?

I do hope you've managed to sort things out by now. I'm in a similar position although my ex doesn't earn as much.