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Nicola-mod
Nicola-mod, Moderator
Category: Family Law
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Experience:  Moderator
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When we got divorced 10 years ago my ex husband and I mutually

Customer Question

When we got divorced 10 years ago my ex husband and I mutually agreed child and spousal/maintenance for children now age 14 and 17. In June 2011 my ex husband applied to the court to have the maintenance reduced 'claiming' his income had reduced. A new order was issued in November 2012 by the judge for a revised spousal (£700) until the youngest finishes university in 2022 and child maintenance (£350 per child) until the children finished university respectively 2017 and 2022. Also, I was awarded maintenance in arrears £1814 dating back to September 2011 payable at a rate of £200 per month, and I was awarded costs of £3k payable at £200 per month following on from when maintenance arrears were paid in full, so over a period ie over a period of 30 months.

My ex husband has not been making these payments which have been sporadic and less than half of what the judge ordered claiming his income has reduced again. My ex husband is self employed and can manipulate his income which he has done in order to avoid paying the maintenance the judge order. He has written to me last week and says he is only willing to pay half the amount the judge ordered for spousal maintenance until 2020, and child maintenance only until school age ie 18. My oldest daughter is due to turn 18 next month. The arrears to date are in the region of £10k.

Can you please advise how I should go about recovering...

a) The arrears for non payment of spousal and child maintenance to date awarded in November 2012 (approx £10k)
b) The non payment of arrears awarded in the order of November 2012 dating back to SeptemberXXXXXcosts (£1814 and £3k)
c) Can I take my husband back to court to agree to pay child maintenance until my daughters finish university respectively 2017 and 2022 as agreed?

What would be the best way to go about recovering these sums and to ensure that the court order is adhered to.

There could be a possiblity that I would have to agree to further reduction in maintenance payments which I may be willing to accept.

What procedure do I need to follow through the courts, whether it be through an application or enforcement. It is inevitable that my ex husband will make an application for a further reduction in maintenance, I want to preempt him taking this action by seeking enforcement for non payment. If necessary what enforcement am I seeking and is this the way to go about it? What forms do I need to complete? What are the court fees? Are the arrears from SeptemberXXXXXcosts awarded by the judge recovered through the small claims process? What would be the court process and what do I need to prepare?
Submitted: 2 years ago.
Category: Family Law
Expert:  Clare replied 2 years ago.
Hi
Thank you for your question.
My name is Clare
I will do my best to help you but I need some further information first.
What do you know about his financial position - what assets does he have?
Clare
Customer: replied 2 years ago.


We had to go through all our finances when my ex husband put in an application to revise maintenance payment and the judge looked at his financial position and assets and made an order on that basis, however my ex husband said he still cannot afford to pay me what the judge ordered. My ex husband has a property with not much equity and everything else is negligible.


 


I think my only option is to put in an application for enforcement even though it is a small sum, alternately my ex husband will put in an application to revise the maintenance again. Perhaps if you could advise me on following the procedure of making an application and enforcement, the forms I need and the process I would be most grateful, but I would like your comments on my position at the moment. If I am going to seek enforcement I would like to do so as soon as possible before my ex husband puts in an application again to vary.

Expert:  Clare replied 2 years ago.
Hi
All those sums are enforceable - but what assets or income does he have - I need this to give information on enforcement!
Clare
Customer: replied 2 years ago.


Just very little equity in the house, probably enough to recover the amount of that is owed through enforcement.

Expert:  Clare replied 2 years ago.
Hi
What income does he have (a charging order is not a quick method of enforcement)
Clare
Customer: replied 2 years ago.

He says he is earning £15k less than he did when the order was granted and I know that he can manipulate his income. What I want to know from you is....


 


1) What action can I take to recover the arrears of maintenance that has not been paid and what is the process


2) What action can I take to enforce the backdated arrears that the judge awarded me and what is the process


3) What action can I take to recover costs that the judge awarded me?


4) I want maintenance to continue after the children finish school and until they have finished university which was agreed in the original and last court order, my ex husband says he is handing over to CSA for the standard obligations but can I ask the judge for this to be continued and would it then be added on to spousal maintenance?


 


 


Explain to me the different options of enforcement ie D50k or N327/337 or any other information, can you explain the process and what can I expect to achieve if an application has been made to the court and the process.


 


I cannot completed any surveys until I feel I have been given the information I have requested. Regardless of the income and equity there is a court process in place for enforcement and if you can explain to me the above I can take it from there. If enforcement is rejected by the judge what is the next process?


 

Expert:  Clare replied 2 years ago.
Hi
Before I answer can i ask - does he earn more than £3000 a week?
This is relevant to the CSA issue
Clare
Customer: replied 2 years ago.

He says his income is in the region of £31k but I expect he has kept it below the £36k level if this affects the CSA issue. It can probably be proven he earns slightly more but has hiked up his tax liability. When the order was granted in November 2012 the order was based on his net income being £47k

Customer: replied 2 years ago.

 


 


In case you did not get this reply.....


 


He says his income is in the region of £31k but I expect he has kept it below the £36k level if this affects the CSA issue. It can probably be proven he earns slightly more but has hiked up his tax liability. When the order was granted in November 2012 the order was based on his net income being £47k. I think you may have enough information now to advise me adequately!

Customer: replied 2 years ago.


Also how is the £3k a month relevant to the CSA issue?


 


 

Expert:  Clare replied 2 years ago.
Hi
Thank you for that.
All the outstanding sums are enforceable
You do not need to use the Small Claims Court as you already have the Court OrderYou have various options for enforcement - they are set out here
http://www.familylaw.co.uk/system/uploads/attachments/0002/1197/EX327.pdf
Do not in any circumstances ever Register the Order in the Magistrates Court.
If he is self employed the Attachment of Earnings Order is also not available.
The Charging Order is effective - but it will be a long term enforcement method.
This leaves sending the Bailiffs in to remove his belongings - or the final one on the list of the Judgement summons - the threat of prison if he does not abide by the order.
It does have a degree of Justice about it - but I am aware that many clients feel uncomfortable with trying this.
You have already identified the form you can use if you wish the court to decide - the D50K
If he applies to the CSA to take over maintenance then the current order will fail and cannot be rr-opened after the CSA assessment ends HOWEVER your children can make applications for maintenance in their own rights under Schedule 1 of the Children Act
I hope that this is of assistance - if you need further details please ask
(If he earnt more than £3000 a week the current order could stand)
Clare
Expert:  Nicola-mod replied 2 years ago.
Hello,

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Thank you,
Nicola

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