Divorce & Calculating Child Maintenance

1 in 67 UK adults is a millionaire, according to the Barclays “Prosperity Index”.  The population of Nottinghamshire is approximately 823,126.  That means that there could be over 12,000 millionaires within Nottinghamshire.  If that is you, and you (or someone you know/love) is going through a divorce, you need to read on.

Maintenance law recognises that couples often allocate different roles within their marriage.  One parent – often the mother – is detailed to child caring. While this is invaluable, it often means stepping off the career ladder and having no independent income.  The other spouse – typically the father – would often set out to be the breadwinner, and at the time of separation is likely to have a much greater earning capacity.  To recognise the stay at home parent’s sacrifice, to allow (her) to adjust to a life without the other spouse, and to meet the children’s needs, the concept of ongoing maintenance was created.

Let us deal first with child support.  This is a maintenance claim, available to all parents – not just the married.  The payer (often the father) can also ask to be assessed.  There is an online Child Maintenance (CMS) calculator which is relatively easy to use.  It is sensible, where parents can tolerate this, if they sit down together and input a single set of data into the CMS calculator.  If they put in different figures for overnight stays or for earnings, the calculator generates two different, but “correct” answers.

Depending on a small number of factors, chiefly child maintenance is calculated on the payer’s income amount and the amount of nights the children spend with the payer.

For the so call “non-resident parent”, child maintenance rates are effectively:

• (a) nil – where their income is up to £5 per week
• (b) £7 per week, for gross incomes of less than £100 per week
• (c) between £7 and the maximum of £482 per week, for gross incomes over £100 per week

For the very wealthy family, or for children that have considerable/unusual needs, this may not be the end of the story.  Unmarried parents with children in their care can make an application for top up maintenance (perhaps for educational costs) through something called “Schedule 1 of the Children Act”.  Married parents can make maintenance claims through the divorce courts, under something called the Matrimonial Causes Act (MCA).

Once you are claiming to Court, there isn’t a hard and fast rule.  You cannot say for instance “the payer must pay me 10% of his net income”.  The Court has wide discretion, over the outcome it imposes.  However, the starting point is likely to be a CMS/Child Support calculation as outlined above.

You have to crunch some numbers to see who pays who.  You take the amount of child support from the payer’s monthly income.  You would then take away his other essential monthly expenses to see whether or not that left a surplus.

You would then look at the payee’s monthly net income.  You would add to that, the amount for child support.  You would take from that total all the payee’s essential monthly expenses and you would ask, does that leave a deficit.

If the payer has a surplus and the payee has a deficit when those numbers are crunched, then arguably maintenance should be paid, to the spouse who is worse off.

The next question is, how long must it be paid.  That can depend on a number of factors including earning capacity, parents ages, the children’s ages, needs and health.

Imagine a mother who was highly skilled before parenthood, whose children are about to leave school.  She might need maintenance for just a few years, whilst she gets back into the world of work, and to offset the additional expenses of any of the children.

At the other end of the scale, a wife might have been entirely dependent on her husband’s income for so many years that she has no real prospect of returning to work.  She might at the same time be old, or in poor health.  The Judge might then say, “you should have some maintenance from your husband for the rest of your life, even if we reduce the annual amount after the first few years, until your pension kicks in”.

A court can impose a bar on a wife extending the terms of any Maintenance Order – e.g. it can last for 10 years and be non-extendable.  A court can even if say “I recognise that this spouse has a great financial need, and whilst husband cannot really afford maintenance now, he might be able to afford a payment in the years to come, so I am going to make a nominal order for £1 per year.  The husband won’t actually pay that £1 each year, but it means there will be a live order, that the wife can apply to vary upwards if the husband can ever afford to pay it”.

Note that Maintenance Orders are not automatically reviewed, but there can be provisions in court orders obliging the payer to share his income details with the payee annually.

Maintenance is always paid direct to the ex-spouse/parent, although where it provides for university aged children, sometimes private arrangements are made, to pay the child direct instead and, this may surprise some people. There is no legal provision, obliging the recipient, to use the maintenance for a particular purpose.  Once your ex-spouse gets the maintenance, they can spend it on whatever they choose, whether you like it or not.

It is much better to both agree what maintenance should be paid (and for how long), than to leave this kind of decision to the court.  It is hard for lawyers to predict outcomes, in maintenance cases, not just because the Judge has a wide discretion over his or her answer, but also because sometimes ex husbands and wives will dispute the basic facts the other person is putting forward.  In short, maintenance cases are ripe for negotiation and compromise.  A good way to compromise is to get round a table, to work together on a solution by the collaborative law method.

Moreover, you need not spend a lot at the outset.  For £180 (inc VAT) we will meet with you, discuss the issues, and provide detailed follow-up advice (in writing or via email) covering your options, potential costs, and the legal procedure.

For more information on either collaborative law or the issues raised in this article, please contact David Winnett at our Nottingham office on 0115 9068 078 or email him directly at dwinnett@hopkins-solicitors.co.uk

Alternatively our highly experienced Family Law Team are located across our Nottinghamshire offices in Mansfield, Sutton and Kirkby and they can be contacted on 01623468468 or via the web enquiry form below.