[Solved] Shared custody 50/50

I am at the start of a divorce process, but have verbally agreed with the other half that we will have an equal number of nights in every 2 weeks with the kids and will split all costs down the middle. We have 2 kids. what do I need to do to position myself right from the start with regards a 50/50 split to ensure I minimise any claims she wants to make against me for maintenance etc.

My salary means I am not in a position to claim any tax credits etc, but she should qualify, and I was going allow her to claim the child benefit for both kids and all tax credits that she can, but if I do that with the child benefit, does that adversely affect my argument for 50/50 costs and no maintenance if she then tries to claim?

Still waiting to see a solicitor to see how it will all pan out, so just after some initial guidance as she is trying to negotiate everything up front.

Thanks

R

Hello Rizzy123

It is good to hear that you and the other parent have come to a family-based arrangement. With you having a family-based arrangement in place you and the other parent may wish to discuss and negotiate including shared care into this. Although, family-based arrangements are not legally enforceable and there are no strict rules or formulas to stick to when calculating child maintenance. Therefore parents can decide the terms of their agreement to suit their current circumstances.

The Child Maintenance Options website has a useful tools and guides section that you and the other parent may find helpful when trying to negotiate your family-based arrangement. You may find the Family-based Arrangement Form helpful when negotiating your family-based arrangement. Although this is not a legally enforceable document, it puts the agreement on a more formal basis. You can complete it together with the other parent and sign your names to show your commitment to this arrangement. This can be found at http://www.cmoptions.org.

The Child Maintenance Service takes shared care into account in different ways depending on the paying parent’s child maintenance rate. Shared care applies if the paying parent provides overnight care for at least 52 nights per year before a liability will be reduced. This is based on the agreement with the receiving parent and or evidence. Shared care is usually determined over a twelve month basis, but shorter periods can be considered in appropriate cases.

The paying parent’s weekly amount of child maintenance is divided between the number of children that qualify for child maintenance.

Shared care is then taken into account, based on the number of nights of shared care for each child. The amount of child maintenance to be paid is then reduced by up to 50 per cent plus a further £7 reduction, depending on the number of nights, as long as this is for more than 175 days or more a year.

The reductions for Basic and Basic plus rates are:
1 night per week = amount reduced by 1/7
2 nights per week = amount reduced by 2/7
3 nights per week = amount reduced by 3/7
175 nights or more = amount reduced by half and then minus a further £7.00 per child

A paying parent will usually have to pay at least £7 a week in child maintenance after shared care has been taken into account. However, if their child maintenance is set at Flat rate because the paying parent receives an income-related benefit, allowance or entitlement, then shared care for 52 nights or more a year will reduce child maintenance to £0 for that child. The paying parent also does not have to pay child maintenance for any other qualifying children who live in the same household as that child with shared care.

If child maintenance is set at Flat rate because the paying parent’s income is £100 a week or less, the Child Maintenance Service does not take shared care into account at all. This means the amount of child maintenance will not change.

This is only based on the number of nights a child stays with the paying parent and assumes that the receiving parent still carries out most of the day-to-day care. If the paying parent can prove that they carry out an equal amount of day-to-day care as well as having equal shared care then the Child Maintenance Service regards neither parent to be the paying parent so their child maintenance would be set as nil – even if one parent receives child benefits or tax credits as the child’s parent. Where there is equal day to day care, and there is no paying parent means that there cannot be a statutory case and the Child maintenance Service would not being able to process the application as there is no identifiable paying parent.

If a paying parent has more than one qualifying child and does not provide the same amount of care for all the qualifying children, liability will be worked out by adding a reduction for each child and dividing the result by the total number of qualifying children.

The following link provides further information on how the Child Maintenance Service calculates child maintenance that you may find helpful, https://www.gov.uk/how-child-maintenance-is-worked-out/how-the-child-maintenance-service-works-out-child-maintenance.

For more information on all the different ways to set up child maintenance and for a more personalised service, you can visit the Child Maintenance Options website.

The DWP have a sorting out separation web-app that you may find useful. It offers help and support to separating and separated families. The link is: www.dad.info/divorce-and-separation/sorting-out-separation.

Regards

William

Thanks William,

My current situation is that I work from home, she works away. If I have the kids 7 nights in every 14 and on the 7 nights that I dont have them I still do their breakfast, dress them, take them to school, pick them up from school, have them with me all day when they are sick, and through hols when she is working and usually provide the evening meal,with her then picking them up from me each evening that she has them, but the child benefit for both is paid to her, does this mean that maintenance would still be applicable??The costs for the day to day life of the children sits more on me than on her.

I am trying to understand my position between pushing for full custody (I see my self as the main carer) but doing this would upset the kids even further vs a completely shared custody position. if we have completely 50 / 50 split (time wise) with the kids but she continues to get the child benefits does this put me in a disadvantageous position with regards her claiming child maintenance even though I have the majority of the time with them.....

Also (and I hope to never be in this position), if I was to find myself unemployed in the future, and the child benefit was going to her for both children, where would I sit with regards claiming any relevant benefits etc....

Thanks

Thanks William,

My current situation is that I work from home, she works away. If I have the kids 7 nights in every 14 and on the 7 nights that I dont have them I still do their breakfast, dress them, take them to school, pick them up from school, have them with me all day when they are sick, and through hols when she is working and usually provide the evening meal,with her then picking them up from me each evening that she has them, but the child benefit for both is paid to her, does this mean that maintenance would still be applicable??The costs for the day to day life of the children sits more on me than on her.

I am trying to understand my position between pushing for full custody (I see my self as the main carer) but doing this would upset the kids even further vs a completely shared custody position. if we have completely 50 / 50 split (time wise) with the kids but she continues to get the child benefits does this put me in a disadvantageous position with regards her claiming child maintenance even though I have the majority of the time with them.....

Also (and I hope to never be in this position), if I was to find myself unemployed in the future, and the child benefit was going to her for both children, where would I sit with regards claiming any relevant benefits etc....

Thanks

probably unhelpful but when I suggested becoming the main carer whilst she worked I was told not to be silly and that she relied on my CMS payments....she doesnt

Hello Rizzy123

As you have a family-based arrangement in place, there are no set rules to follow, the arrangement can be anything that you both agree to.

Legally speaking, the Child Maintenance Service would usually class the parent in receipt of Child Benefit as the main carer. However, if 50/50 shared care is proven, this makes it impossible to distinguish a main carer and in those situations, no maintenance case could be put in place.

With regards to any benefits, again it is the main carer who receives any of the benefits. Either of the parents can apply for the benefits. If the main carer is disputed, a decision on who gets the benefit can sometimes be decided by tribunal.

Regards

William

so I have been to see my solicitor and he thinks I am in a strong position to be classified as the main carer. I have agreed verbally with the missus that the kids will be split 50/50 in terms of nights, but I will be also having them every day monday to Fri to do the school runs etc, and will have them through the days for the majority of the school hols when they are ill etc.

He has also told me that no maintenance is payable.

He has recommended mediation as my wife was unwilling to have an open discussions about anything else other than the 50/50 and neither of us can afford for this to get nasty/prolonged.

now that it is loosely resolved with regards the kids, I am now trying to work through different financial solutions. If I am classified as the main carer, but due to 50/50 we split the child benefit 50/50, would she still be able to claim all other tax credits etc for both children?? We have never been in a position to claim anything before (or have never really looked if we could, so this is a new field for both of us). allowing her to get the maximum benefits possible will be critical for the next couple of years. her earning are currently a lot less than mine, but she has the potential to earn considerably more following the completion of all her legal training (to be a full solicitor!!).

any idea if there is a threshold in salary where child benefit is stopped/reduced??

any help guidance on how the benefits might work would be appreciated.

Rizzy123....

TAKE NOTHING CMS tells you to be factually correct in the first instance, I had a [censored] of a time with them, as they are new they dont know their own rules, even though these are less draconian than the CSA and are supposedly geared up to be fair to both sides. In my experience its still not the case. Ask your questions several times to several different people in the CMS. As of only a few months back, their internal training, policy knowledge and legislation knowledge was terrible.

Also don't for a minute think that as you have a family based agreement set up you are safe. I had one of these, drawn up by my solicitor and signed and witnessed by my ex. We agreed 50/50 when it was all nice and naively I agreed to pay her generous maintenance. After some time passed she decided she thought she could get more out of me. The CMS sided with her, you can call me negative but its not unusual for the other party to only tell the CMS what is convenient, not necessarily lies, just not the whole truth.

For 6 months I disputed the CMS ruling on maintenance, I paid it as it was easier but every time I spoke to them on the phone I made my point clear that I disagreed. Eventually i wrote to my local MP who wrote to the minister of state for the DWP. He was kind enough to give me the correct legislation that I then had to take to the CMS for them to finally back down. It then took another 6 months of chasing, threatening to sue the CMS for me to be given back the money they incorrectly made me pay. I cannot stress enough, question everything, log everything, double check everything.

Basically if true 50/50 can be proved then no maintenance at all should be paid by you, furthermore it actually sounds like with the school runs etc you do more, the primary care giver. Now this is where it gets contentious. CMS by default consider the primary care giver to be the person in receipt of CB.

If you have 2 kids the ideal solution is for you to each collect CB for one child each thus wiping out the primary care giver argument.

You can only claim working tax credits if you are the PCG, and you can only be that in the eyes of the law/CMS/HMRC if you are the CB benefactor

Although I won not having to pay maintenance on 50/50 it took a long time, I earn a lot more than my ex, but that's not the point with 50/50. Even after winning the 50/50 battle I still could not claim CB or WTC.

As it subsequently transpired I eventually won soul custody from my ex in court, open the doors to then trying to get CB and WTC, the same burden of proof in both cases but with 2 different HMRC departments. Only 1 person can claim CB, so although I was soul and PCG It took we another 6 months battling HMRC to get CB. The reason I mention this, is to point out how useless they are, I then raised a maintenance claim against my ex but surprise, surprise as the was an existing case file on the kids it took another 6 months to finally get maintenance, Everytime I spoke to CMS they always assumed as I am a man I should be paying not recieving, until I pointed out they were reading the claim the wrong way. Their computer system actually had to be patched for my beneifit in order for them to close the old case and open a new case, all in another 6 months.

Everything is possible but it an uphill battle, fortunately you are only going 50/50, my case ended up vastly different. But as I said above, ask every question 2-3 times to different people in CMS, dont take anything for granted they tell you, question everything!

I meant to point out (I know you are trying to be nice and allow her to get maximum benefits) If you do this you will never be a PGC in law and your ex only has to disagree with CMS on who is the PGC and that's it. To prove PGC either she has to confirm you are with CMS or you need to show who buys clothes, pays for afterschool activities, address the kids are registered with dentists/doctors etc....

Feel free to msg me directly, I feel your pain and dont think for a minute anyone is an expert in this area and as for cmsoptions! pah.

And good luck

thanks, you have captured some of my concerns, I have been advised that I am in a position to be classified the primary carer, but if I concede this to allow her to claim the benefits then I believe that this puts me in a negative position with any decisions that she makes with regards the kids in the future, but if I take the Child Benefit, and she is unable to claim the tax allowances then there is no way she will be able to afford her half of the 50/50 and the kids will suffer because of it.

I've read more than one case where any family arrangement even signed sealed and stamped formally, quickly becomes null and void if in the future she decides to use the fact that she is claiming the CB against me for maintenance or to strengthen her position as the primary carer to move the kids away.

My job currently allows me to work from home almost permanently, and I can keep this in place for a few more years at least until the kids are well established in the local comprehensive school, but in keeping my current job to suit the kids (and to fit in with her working practices where she drops the kids off with me at 7am and picks them up from me at 6pm), I am definitely turning down the opportunities of career progression and some quite sizeable hikes in Pay, which I am happy to do for as long as I can see the kids pretty much daily.

My concern here is if I concede these opportunities for myself now for the benefit of the kids stability and to allow her to carry on working, and give her the CB to allow her to claim all the tax allowances, where do I stand in a year or 3 she decides to change her mind.....

I certainly think you are putting yourself in a weaker position - at the least, I would say that you come to an agreement where each of you claims child benefit for one child (perfectly legal) which actually means you get £7 per week extra in benefit, which you could then give to your ex to make up for some of the child tax credits she might lose.

one of the biggest problems.....you cant normally force her to give up CB for either child if she is already claiming it which is normally the case the woman claims it just through the fact they usually apply when on maternity leave so you need to have a nice chat about it. The other option is to put a claim for CB in to HMRC, they will require the same burden of proof for PCG as CMS etc.

In my case I put a claim in, the computer spins out as 2 people cant claim for CB, this then causes a human review. (Be aware it stops all CB payments immediately until the issue is resolved). At this point you argue the case with your facts to HMRC and they decide for or against you. If you do manage to win this battle it makes the CMS won alot easier.......

Thanks Vindicated, is there any guidance I can follow to making contact with HMRC (web link etc) ? The more I can prepare in advance for discussions with her and between solicitors the better.