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Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34283
Experience:  I have been a solicitor in High Street Practise since 1985 and have specialised in Family Law for the last 10 years
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I've recently had a final hearing for an ancillary relief proceed

Resolved Question:

I've recently had a final hearing for an ancillary relief proceedings. Currently I live at my parents and I claim income support. At the court hearing they have assigned me an earning capacity based on a job I had five years ago. Since then I have had a business for a couple of years where I earned less and studied full time for for a couple of years. Based on that earning capacity they have worked out a figure for spousal maintenance which if you add on the correct CSA payment for that amount would total 66% of my net pay leaving me unable to house myself or pay any bill's essentially and they've said that I have one month to find a job and start paying from 1st of Feb so in effect I would need to start work at the start of January to get paid at the start of Feb. This is totally unrealistic and I would not be able to support myself while in work let alone the time scale they are talking about.
My question is if I'm unable to appeal and get it amended and they go ahead with this and I can't pay what's going to happen. I've read about judgement summons and attachment of earnings but I'm not hiding any money so what happens, he's said there could be a custodial sentence if I don't pay but is that really the case as I can obviously prove I don't have the money as I don't have a job. My best chance of getting a job is to move to the town where I used to live and my ex-wife lives but given the amount they have set it as I couldn't pay rent and support myself there.
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 capital assets are there and how have they been distributed?
What evidence of employability was given at the hearing?
Clare
Customer: replied 2 years ago.

There is a uk non nuptial discretionary trust that provides a set amount into the children's accounts which I control solely every month. I currently provide half of that to ex-wife as part of an undertaking for child support and half of that I use to help with contact. This as a whole amount is conveniently for ex-wife the same amount as has been awarded in spousal maintenance. I am in the process of getting that reduced to half so as I can just provide the half to her for child support as per the undertaking. The trustees of this trust have never provided me personally with any capital or income and their intention has always been that the money was to be used for the benefit of the children and the money is treated for tax purposes as the children's and they would not want me to use this money to pay my personal spousal maintenance. I am currently also a beneficiary however I'm looking into currently how I can remove myself.

There is another offshore non nuptial discretionary trust that provides a mortgage on my property in uk which she lives at with the kids which is roughly the same value as the property.

There is a small pension which he has said he will transfer over fully to ex-wife leaving me with nothing.

The evidence was more a tax return and I agreed verbally that in 2009 I earnt this amount as that's what I did earn but there was no specific evidence of employability as you call it.

Expert:  Clare replied 2 years ago.
HI
Where did the funds in the Trusts come from originally?
Clare
Customer: replied 2 years ago.

My parents when I was a child. There is no suggestion either of the trusts are nuptial and the judge has stated that he has no power to order the trustees themselves or alter the trusts.

Expert:  Clare replied 2 years ago.
Hi
How much is held in the trusts?
How old are the children?
Clare
Customer: replied 2 years ago.

1. A lot

2. Teenagers

The trusts are dynastic.

Expert:  Clare replied 2 years ago.
Hi
I am afraid that the existence of these Trusts and the self evident fact that even if you do not have direct control of payments you can and do influence what is paid out is what lies behind this Order.
This is clear from this sentence
"I currently provide half of that to ex-wife as part of an undertaking for child support and half of that I use to help with contact. This as a whole amount is conveniently for ex-wife the same amount as has been awarded in spousal maintenance. I am in the process of getting that reduced to half so as I can just provide the half to her for child support as per the undertaking."
Equally it is clear that this was the reasoning behind the amount of Spouse Maintenance that was set.
If you fail to make payment you will be in Contempt of Court and yes the Judge can send you to prison - and in these circumstances almost certainly will
Please ask if you need further details
Clare
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