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Maintenance rights ...
 
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[Solved] Maintenance rights and ability to sue for more

 
(@midlandsjon)
New Member Registered

Hi

Just looking for some advice.

I split up with my wife about 5 years ago. It was a shock at the time (she wanted to leave me; she had been too young when we met) but otherwise mutually agreeable. She was never one about the money and because I had supported her through University when she hadn't been earning and I paid the bills etc she didn't want anything from me. I did decide to give her a small percentage of the house sale though so she wouldn't struggle; we had a young daughter and I didn't want it to affect her.

I drew up a 'separation agreement' after a few friends advised that she may change her mind in future as technically she may be entitled to half; we both agreed and signed this (although I'm not sure how strong it would be in a court of law).

I agreed to give her Β£500 amount per month which seemed a reasonable amount for her living costs and for our daughter - she was earning at the time and comfortable enough; this went towards her rent, after school events and food for our daughter. I increased this amount to Β£600 per month a year or so later to cover some increased (but not excessive) living costs, I was happy to do this. Bear in mind that I was/still take my daughter 2-3 days a week so I'm also paying for her food and other costs etc then.

We eventually got divorced, following the '3 year separation' rule; there were no issues and we remained friends.

Recently though, 'external forces' have come into play and we had a bit of a falling out. I had been out of work and had asked if I could reduce the amount I was giving her - after all, our daughter was no longer going to nursery/after school so surely she didn't need that extra cash?

I hadn't realised that her financial situation wasn't ideal at that time and this didn't go down well at all. She responded saying that she could have got a lot more from me previously if she'd been to the courts but she'd never been about the money. I managed to defuse the situation at the time, but I just found it that she had been that irritated at the time that she had actually been to see a lawyer to see if it was possible at this stage to get money from me or even sue me for the past few years to get back an increased amount that in theory I 'should' have paid over that time, or more money from the house sale - and the lawyer had apparently said 'yes'.

She didn't proceed, thinking of our friendship and the effect on our daughter.

Things seem ok again now, but I need to safe guard my future finance.

Is it true that she would be able to claim back past 'maintenance' if it was deemed I hadn't paid enough per month previously?

At the time I had been working as a contractor and making very good money. For tax purposes, my accountants had recommended a minimum salary and dividend payment system (most contractors do this and it is legal, we still pay tax but not such as extortionate amount). In theory, you could argue that I had paid her more than enough based on my salary - but would they base it on my total income? In which case, a lawyer could argue I didn't pay her enough.

In the 'fair world', I was paying her enough - she was happy with the agreed amount, didn't struggle, was able to purchase nice clothes for our daughter and take her out and about and there were no issues. I'm just aware the 'real world' can force a man to pay a huge percentage of his earnings to an ex, even if she doesn't 'need' or 'deserve' that much.

Is it possible for her to sue for this past money, even now we're divorced? Or set a new current 'maintenance' fee - and what would that amount be based on, my earnings now, or then?

I also inherited some money from family, during the divorce proceedings - I believe it was paid out BEFORE the divorce was finalised. Would she be entitled to any of this?

What about the proceedings from the previous house sale (it had been a joint mortgage); I had given her some but in theory she was entitled to more; could she attempt to now claim more of this, 5 years on?

Is there any way I can protect myself?

I'm still happy to pay her a reasonable amount, I don't want her to struggle and it to affect my daughter. I spend as much time with my daughter and take her regularly at weekends and often extra days where I can and on holiday etc. I pay extra for her after school activities. So this isn't about me wanting to 'skimp', this is about me protecting myself from the ridiculous laws and any future changes in her mindset that may for some reason push her to bring such unreasonable laws into play forcing me to pay extortionate amounts which just aren't fair. I'm happy to pay for my daughter but why should I pay for the ex, who was the one who wanted to break up (though no fault of mine as such) in the first place?

Thanks

Quote
Topic starter Posted : 26/08/2014 2:21 pm
(@dadmod4)
Illustrious Member

Hi

I think it would be worth having a session with a solicitor - you may get 30 minutes free but it would be worth paying to get a bit extra time. As far as I am aware, once the divorce is finalised, there is no going back unless she can show that you withheld information during the divorce that you had been asked to give. Likewise with the maintenance, as the CSA wasn't involved, there are no arrears to be had and if she opens a case with the CMS, then the payments begin from the date the case is opened - I suspect she didn't proceed because she was advised she didn't have a strong case.

With regards to paying yourself a dividend instead of pay - I thought that practice more or less ended with IR35 (still legal, but I didn't think it was tax efficient any more) but ultimately, HMRC should have your income including dividends and I would have thought that maintenance would be calculated on your income, not just on your salary and the CMS calculation for one child is 12% of gross income.

As I said, I think it's worth having a consulation with a family solicitor - before you go, put all your questions down on paper in bullet points and make sure you get all questions answered with minimum chat to make the best use of your paid time.

ReplyQuote
Posted : 27/08/2014 11:44 pm
(@Child Maintenance Consultant)
Noble Member Registered

Hello Midlands John

With regards to your mortgage or divorce questions, as mentioned by actd, you would have to seek legal advice. I will answer your questions purely from a maintenance point of view.

Maintenance payments are worked out based on your taxable gross income, whatever your ex’s income is at the time is not taken into account as it is your personal contribution to your child’s upbringing. Also taken into account are the amount of overnight stays your daughter has with you.

If there was to be a statutory arrangement at any time in the future, it would start from around the time the Child Maintenance Service contacted you, so there would be no back-dated payments and the amount would be based on what you earn at the time, not what you have earned in the past.

You can find detailed information about how the Child Maintenance Service work out maintenance here https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/325219/how-we-work-out-child-maintenance.pdf.

The Child Maintenance Service are just one option available to arrange maintenance through, if you would like information about all the options available, you can contact Child Maintenance Options, http://www.cmoptions.org.

Regards

William

ReplyQuote
Posted : 29/08/2014 11:16 am
(@midlandsjon)
New Member Registered

Many thanks for the info both... I will certainly check those links out πŸ™‚

ReplyQuote
Topic starter Posted : 01/09/2014 9:15 pm
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