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In the countdown to the festive season, concerns over finances can understandably escalate – especially for those divorcing and separating who have children but do not have their own income streams.
The aim of this article is to provide key insights into Child Maintenance and Spousal Maintenance.
While they are often believed to be inextricably linked, they are two very distinct issues.
Child Maintenance Support
How do divorcing/separating couples work out Child Maintenance?
Child Maintenance is something which needs to be considered whenever separating couples have children, regardless of whether they were married or not and whatever their financial circumstances.
The Child Maintenance Service (CMS), a stand-alone government body, provides a formula for parents to calculate child support.
Most separated couples will use the formula as a basis for agreeing the level of child support to be paid and make informal arrangements for this to be paid directly.
Divorcing couples have the option of including their agreement on child support in the order (often known as a consent order) which sets out their agreement as to how their assets, debts, pensions etc will be divided.
Which parent is responsible for paying the support?
The parent with whom the children spend less time will be responsible for paying child support to the other parent. Where the children’s time and the child care responsibilities are shared equally between the parents then no child support is usually payable.
If there is any dispute between the parents about whether this is the case then the CMS will generally assume the primary carer to be the parent who receives Child Benefit and assess child support accordingly.
For how long does Child Maintenance continue?
The paying parent is obligated to provide child maintenance until the child completes “qualifying education” which is generally full-time secondary education but can include other forms of ongoing study such as some apprenticeships. No child support is payable after the child attains the age of twenty.
What happens if parents cannot agree on the level of support?
If the parents are unable to agree then either one of them can make an application the Child Maintenance Service (CMS) for a calculation.
The CMS will calculate the support payable using a six-step process.
The various stages include determining the paying parent’s yearly gross income. The relevant parent usually provides this. However, the CMS can obtain the information from HM Revenue and Customs (HMRC) if the parents do not supply this.
Factors, such as pensions and school fees, which could change the paying parent’s financial situation, are also assessed before converting the yearly gross income into a weekly figure.
Key criteria the calculator draws on includes the number of children receiving the income and the level of what is called ‘shared care.’ This is based on how much time the child/children of the paying parent spends with them and includes overnight stays.
What happens if the paying parent loses their job?
Either parent can let the CMS know of a change in circumstance. The Agency will then re-evaluate and reduce the level of support the paying parent needs to provide based on the calculator system.
What happens if the paying parent refuses to pay?
The receiving parent can contact the CMS which would then take appropriate enforcement measures such as applying for a court order to take legal action.
What happens if the paying parent dies during the support period?
CMS payments would cease on the death of the paying parent. State benefits, such as Universal Credit, may be available to the surviving parent, depending on their circumstances at the time.
Are there any other options besides the CMS for parents to agree Child Maintenance?
Agreements between parents can be negotiated with support from experienced family law experts such as Jones Myers.
Our specialist services include mediation, a non-confrontational option for parents to reach a solution in a spirit of co-operation which puts their children’s best interests first.
As a qualified Mediator and Child Inclusive Mediator I regularly see at first hand the benefits of the mediation process for parents, children and the wider family.
Spousal Maintenance
Divorce does not automatically bring an end to the financial obligations between divorcing and separating couples.
Significant income disparities between spouses may require ongoing financial support to prevent undue hardship, especially when considering the well-being of any children involved.
What is Spousal Maintenance?
Spousal Maintenance is a payment made by one party to the other as part of the financial settlement on their divorce or separation.
Usually, it is paid every month and can last for either a defined period or, in increasingly rare cases, until one of the former spouses dies.
Spousal Maintenance is different from Child Maintenance, which is statutory. It is not an automatic entitlement and only applies to divorcing couples.
How is the amount and duration agreed?
There is no set formula for working out Spousal Maintenance payments. How much is paid and for how long can be settled through mutual agreement between a spouse and their ex during divorce proceedings.
Information is exchanged about each spouse’s income and their monthly outgoings. If one spouse has insufficient income to meet their needs and the other can afford to make up or contribute to that shortfall then Spousal Maintenance may be appropriate.
Interim Spousal Maintenance can be agreed or ordered in the initial stages of separation to ensure that the spouse who is weaker financially can manage their basic monthly outgoings.
Does getting Spousal Maintenance involve going to Court?
If the couple are unable to come to a mutual agreement, the Court can decide whether Spousal Maintenance should be paid.
In every case the Court must consider the possibility of a Clean Break Order – which severs all financial ties between the couple.
If a Clean Break Order is not appropriate immediately, the court will order what the Judge considers to be a reasonable level of Spousal Maintenance – and for how long this must be paid.
The court will have before it detailed information about the income available and each party’s income needs. Spousal Maintenance is usually only ordered for a fixed period of time, long enough to enable an adjustment to independence.
How can couples reach a solution without going to court?
More couples are turning to non-confrontational options, which allow them to retain control of decisions which affect them, put their children’s best interests first and avoid costly and destructive court battles.
They include negotiation, mediation or collaborative practice where couples and their lawyers commit to find a positive solution without going to court and sign a binding agreement to that effect. Our specialist lawyers at Jones Myers have extensive experience in advising couples in these areas.
In what circumstances is Spousal Maintenance terminated?
When Spousal Maintenance ends will be set out in the court order. Typically this will be when the spouse receiving the payments has had time to adjust to independence or when their financial needs are reduced. For example, when the children finish school or university, or they leave home.
Spousal Maintenance will cease when one of the spouses dies or if the recipient of the maintenance gets married again or enters into a civil partnership.
What happens if the parties situation changes?
If the circumstances of the spouses alter significantly after a Spousal Maintenance Order has been made, they can agree to change the payments ordered and send an agreed order to the Court which supersedes the original order. If agreement is not possible then either of them can apply to the Court to vary the terms of the order.
The Court will consider factors such as changes in income, employment status or financial needs to assess if a variation is appropriate.
For vital areas of law such as Child Maintenance and Spousal Maintenance, I cannot emphasise enough the importance of consulting experienced family lawyers like Jones Myers.
Offering expert legal advice to our clients, we help them to understand their legal position and options.
Providing legal guidance and representation with child maintenance disputes, we support clients to ensure that the child maintenance arrangements are fair and reasonable.
Our approach prioritises resolving disputes in a non-confrontational manner, allowing us to assist couples in reaching voluntary agreements for child maintenance.
We can also assist in negotiating Spousal Maintenance agreements to reach a fair and mutually acceptable solution. If an agreement cannot be reached through negotiation, we can represent clients in court proceedings to seek a Spousal Maintenance Order or to vary an existing order.
Read more articles by Nicki Mitchell.
About Nicki Mitchell
With three decades experience in family law, Nicki specialises in the financial aspects of relationship breakdown – and particularly complex cases involving family businesses, multiple properties, and complicated pension arrangements.
A skilled mediator, child inclusive mediator and collaborative family lawyer Nicki champions Alternative Dispute Resolution processes which avoid a lengthy court process and can lead much more quickly and cost effectively to a successful resolution.
Her exceptional track record also includes advising clients on the more traditional methods of resolving issues surrounding family breakdowns. Direct Dial: 01904 202553 or email Nicki.mitchell@jonesmyers.co.uk www.jonesmyers.co.uk