Clean break and spousal Maintenance

[pascalstriangle]

Hi, I really hope someone can help before I go ahead and instruct my solicitor to do my consent order. Between me and ex-husband we have agreed how we are going to split our assets, and he has agreed to have a nominal periodic payments clause as we have young children.

I have read that the spousal maintenance means that this is not a clean break. However I am confused after speaking to solicitor and receiving the overview of the work they will be doing.

They have said that it will be a clean break financial consent order in the written letter. During our meeting, the solicitor said that it would be a clean break on assets and then a second aspect which would not be a clean break. Since I have heard that with young children there wouldn't be a clean break, can someone more knowledgeable tell me why my solicitor keeps referring to it even though nominal maintenance is agreed.

I am really hoping that this is a misunderstanding of terminology on my part rather than a horrible surprise when the order is done.

Sounds to me like clean break and child maintenance.

You don’t appear to be receiving spousal maintenance. You are receiving maintenance for your children.

We have agreed nominal spousal maintenance which should be put into the consent order. Child maintenance is separate. I am asking if what the solicitor is saying is correct - that you can have a clean break financial consent order AND nominal spousal maintenance in the same order.

We have a child with significant special needs so the nominal order is a must.

Nominal spousal is an insurance policy to stop the children being impacted if your unable to support them financially. It doesn't allow you to clean more of the assets in the future so it's considered a clean break. It's is extremely difficult to convert nominal spousal to fall spousal maintenance.

Yes, I understand that. That is why we have it in there, as an insurance policy that is unlikely ever to be used but in the circumstances it would be used would be convertible, without going into too much detail!

I am happy that we split the assets and that is over and done with. I just keep reading that a clean break financial consent order means no future claim to spousal maintenance, which is pretty much the opposite of what I want to end up with!! The assets are done and dusted, with no desire to change that now or in future.

The solicitor was correct when she said clean break on assets and not a clean break on spousal maintenance. It was perhaps a slightly confusing way of describing it.

The law says that you cannot go back and change the capital split. Once the order says 60% of the house value or whatever, that is it, final, no matter how life then turns out for each of you. In that sense, it is always a clean break on assets.

Spousal maintenance, on the other hand (aka periodical payments) can be changed. That's why you have a nominal order - there won't be any payments as things stand, but the door is open for you or ex to apply to the court to order a sum of money to be paid for spousal maintenance if a) you need it and b) he can pay it.

AH thanks Mrs Aird - nicely explained. So the consent order would have to specifically state there would be no claim to future spousal maintenance to be considered clean break on that too.

I was worried when it was called a 'clean break financial order' as I thought it would omit the 'clean break' bit if there was a nominal maintenance order in it.

Tried to get that in my Consent Order but wasn't successful. However there is an Undertaking that XH will pay maintenance until ds1 is financial independent..... if he ever is.

I am surprised at that, CF. My ex-husbands solicitor tried to get it time limited for a couple of years (based on silly, pie in the sky assumptions) but I asked for it until the end of formal education, with the hope that he will support his child out of the goodness of his own heart if he does not, as expected, reach financial independence. I have read around and this is the norm so I am surprised you were unsuccessful. Did you go to court or just agree not to have it?

It was a stale mate situation for us. But the fact that l had it written in the Court Order as an Undertaking that neither of us would go to CMS after a year, plus that he would pay the CMS set amount, plus half of all school fees (trips, uniform etc), plus half of all activities AND that this would continue until DS1 is financially independent. Plus when DS2 isn't entitled to financial support he would then increase DS1 maintenance, so l actually still continue with the same amount....

I was happy not to keep pressing to get nominal maintenance.