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Ask Clare Your Own Question

Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 33310
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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Ex has filed form A to vary spousal and child maintenance down.

Customer Question

Ex has filed form A to vary spousal and child maintenance down. Order £510-global spousal £200 plus 2 children living with me at time in 2012 for 7 years.( 3rd hearing)
Now youngest child 16 at school lives with me- eldest apprentice aged 18 living with ex.
Ex tried to vary down in 2014 but judge dismissed case due to difference in income. Historically ex high earner but has made it clear does not want to pay spousal. Has left 3 jobs this year, being unemployed most of it and has now settled for part time work of 15 hours/ wk earning around £500 ( sales- selling security- previously IT account manager)
Job advert said could turn into full time with OTE over £30k. Ex does not communicate- has sent solicitors letters and is now being represented. Has been in 6 year relationship living in partners 5 bed detached mortgage free home-furnished to high standard with hot tub. Runs 3 cars, several holidays abroad each year, two designer dogs. Nice lifestyle. Is choosing to earn less to avoid paying me. In 2012 he said in court that he could only earn £1200 and I was awarded £510 yet within months he was earning over £30k and I expect he'll do it again. How do I defend this? I thought of applying for an attachment of earnings and asking for a percentage ? He is now paying £80/ month since latest job. I last received £510 Jan 2015- I have not enforced order due to his unemployment. I was just about to ask for attachment of earnings when I got Form A. Did not want to send bayliffes due to my son living there. Can I now apply for attachment of earnings? Perhaps asking for a percentage of earnings to protect for the future? Can I ask to extend the order due to his non payment?
He went bankrupt just before proceedings and the joint debt bounced back to me. I have just managed to secure full time permanent work but my income is the same and their joint income is considerably more with no mortgage ( mine is (657/ month) I'm not on my feet yet and my son has a much lower standard of living than them. In 2014 I asked the judge to vary the order up and he said he couldn't as I had not applied to defend case so how do I defend it now? I can only think it must be to enforce the order even though ex has sent court form A. What should I be saying? Lifestyle - choosing to work part time? I have court date but no directions to send any forms on the letter. Also, how do I protect the provisions of the original order and am I liable for his solicitors costs? If I get a solicitor, is there any chance he would have to pay my costs if I was awarded minimal spousal maintenance?
Thank you.
Submitted: 11 months ago.
Category: Family Law
Expert:  Clare replied 11 months ago.
HIThank you for your questionMy name is ***** ***** do my best to help you but I need some further information first.What is his capital position to your knowledge?
Customer: replied 11 months ago.
No capital that I know of other than cars / guitars . Longer term he stands to inherit a potential half share in excess of £500k . I inherit nothing. He went bankrupt immediately prior to divorce proceedings and my sister saved the home by buying his beneficial interest and has a deed of trust. Effectively now owns half my home although the court order put the house in my name only- although the mortgage is still in joint names and the order says I indemnify him by using my ' best endeavours' to . I still owe my sister money for paying some joint debts that bounced back to me in the bankruptcy- she put in low offers that were accepted. I believe I have equity of around £25k which is a result of property value rising. I do live next to a river, however, and on the environment agency website my property is highlighted as high risk- 1 in 100. So not sure how this will impact on the re sale value bearing in mind recent flooding events. My intention was to stay in the home until my youngest leaves school at 18. My credit is no good and I can't get a mortgage. The mortgage at £657 is the price people pay locally to rent a 2 bed flat.
In the last order we both keep our own pensions. Thanks
Expert:  Clare replied 11 months ago.
Hi
Is the Inheritance imminent at all?
Clare
Customer: replied 11 months ago.
Not imminent so I know it's not considered.
Thanks,
Jane
Expert:  Clare replied 11 months ago.
How much are the current arrears?
Customer: replied 11 months ago.
Off the top of my head, paid £510 Jan 2015, £300 Feb then nothing until I phoned CSA and asked them if they could find out what was happening. They said he was signing on and that £10 every 2 weeks would be automatically deducted as standard procedure by them and paid to me. Then the old CSA changed to the new system and payments finished. I never paid to join the new system and only involved CSA to get information as ex never communicated what was happening apart from two solicitors letters at the beginning of the year insisting I give up spousal maintenance or be taken to court. I think I received £30 around August then £50 in October and £80 for end of Dec ( 7 days late) I am not sure if he is still employed. I think he is. Arrears due therefore are around £4500 up to end Nov.
Customer: replied 11 months ago.
Each time I decided to enforce the order, it became apparent that he was unemployed. I realised he was working in November and decided to go ahead with the attachment of earnings when I received Form A. I am worried that I need to defend the application within 14 days of receipt of Form A. By applying for attachment of earnings. I don't expect to receive £510 any more but I expect more than £80. If I don't ask for any arrears, how can I expect any? I don't understand how it works.
Thanks
Expert:  Clare replied 11 months ago.
A little confused here.
Have the CSA ever made a formal assessment?
Customer: replied 11 months ago.
From when he left in 2010 I used CSA to help me establish whether he was working or not. He went bankrupt and went 'unemployed' for two years. I later found out that he was still unofficially working for his company. He walked out officially just before bankruptcy and returned officially days after bankruptcy- but that's another story. ( which the police were not interested in) so CSA had made assessments prior to the hearing in 2012 but the barrister was satisfied to continue with child maintenance within the court order as at the time of the hearing the CSA case was closed. So I was 'on CSA books' with a simple phone call to reactivate the case. So when I phoned earlier this year to ask whether they could check whether he was signing on, they confirmed and just did what they call an automatic deduction at source from benefit. Then in August they sent me a letter saying my case was closing as CSA would no longer exist and if I wanted to have an assessment I would need to claim under the new name and new rules where we both have to pay for the service. I have not made a claim under the new system therefore not sure how this affects child maintenance in the court order. Last time I went to court, my eldest son was actually living with his dad, yet was named in the order but the judge still refused to vary it down and said there was too much difference in income. The order states it's a global figure that reduces £1 for £1 what CSA assess/ pay. I still would have thought my eldest son would have come off as he is no longer in full time education nor living with me but ex income was around £30k at the time. Ex has never given full disclosure and always refuses to give details of partners income so I expect this time will be no different.
So CSA have been involved making £10/ fortnight deductions straight from his JSA but no longer exists as an organisation and I have a letter terminating claim with them.
Expert:  Clare replied 11 months ago.
I think I understand that!What is your income?
Customer: replied 11 months ago.
In 2007 I took voluntary redundancy from the civil service ( after working in an admin role for 25 years)
I worked for the CAB as a part time voluntary advisor. He left in 2010 and I had no income and children were still young so I found part time work on zero hours contracts as a TA in schools. Am currently working in a pre school on maternity cover on £7.23/ hr 24 hours a week and have been doing an extra 15 hours in the after school club. Income has been £1200/ month of earnings, tax credits and child benefit. His total household income is over £2000/ month but will never give full disclosure.
I pay mortgage of £657/ month- they have no mortgage. However, it's quite clever that he's only earning around £550/ month. However, he can earn commission on top. That's why I thought that an attachment of earnings with a percentage might be good- of course only as good as long as he stays in the job. After 6 years of financial insecurity with work and ex, I've just managed to secure a full time permanent job in the MOD at £19000/ year- bringing in net around £ 1325/ month. Petrol expenses to work £60/ month. Child benefit on top. £88 / cal month. He spends over £100/ month on dog insurance. One is a doberman. Yet he only wants to spend £80 on his son. It's not as though he spends a single penny on him all year. With the exception of giving him £20 on birthdays and xmas. He plans on buying my eldest son a car and paying the insurance which my son says is £1700/ year ( about to take driving test) He has a private dentist, an iphone contract of £45/ month. He has quite a lot to spend his £550 on!! I guess I'm pretty well stuffed.
Expert:  Clare replied 11 months ago.
Your problem is that you have no claim on his partner's income - you are restricted to actions involving your ex's income and assets alone - and I very much suspect that all of the household items and things like cars etc are registered in her nameYour case will have to be based on the fact that his history suggests that if the Order is dismissed he will immediately return to full time well paid work - which will be ok so far as child maintenance os concerned - but not good for your entitlement to a further three years of spouse maintenance which was clearly planned to try and make up for the fact that you were left with the debts etc.I cannot see any point at this stage in making your own application as an upward variation is clearly not on the cards.Within the current application you will be able to establish the arrears and get some information which may help you obtain an Attachment of Earnings order.Treat the enforcement issue as a separate one which you will address once this issue has been dealt withI hope that this is of assistance - please ask if you need further details
Customer: replied 11 months ago.
Thank you
I don't understand how I can establish and retrieve arrears and what I need to do . I'm worried that if I don't try to enforce the order the judge won't feel the need to look at any arrears due. I know there's no hope of a vary up- but there was last time I went when he was earning more and the judge wouldn't consider it because I hadn't filled in Form A too. So this time I'm worried about the judge not looking at enforcing arrears because I haven't filled in forms asking him to.
Are the arrears due at the full rate until the date ex asks to vary it down? Have I made a mistake in not trying to enforce it earlier? I think I will be better off perhaps having my son out of the assessment as could potentially receive more when ex works full time without having to return to court and wasting court time. My questions are;
What do I need to do about getting the judge to look at the arrears? Wouldn't it make more sense for the judge to do it all at the same time ie: with the attachment of earnings application?
How do I defend that I haven't tried to enforce the order? Is there a name for his trying to do what he's doing? Ie: deliberately working part time to avoid paying maintenance? Is it unheard of in these circumstances to receive £280 from his £550/ month?
That's retaining the £200 spousal and 15 per cent maintenance for child. ?
Thanks.
Customer: replied 11 months ago.
I can't rate the response until my original questions are resolved: most importantly, my fears of going to court not defending / enforcing the order and not understanding how it works regarding how to do that and how to ask for the arrears as above. Also, is there a legal term for his behaviour? See previous note . Thanks
Expert:  Clare replied 11 months ago.
Hi
There is no set legal term - he is simply playing the system I am afraid
The arrears are due at the full rate until such time as the applictaion is made - although the court does have the power to "remit" (essentially cancel) the arrears if they consider that the correct thing to do\If you wish to make it clear that you wish the arrears to be dealt with at the same time then you should make an applictaion using this form
http://www.familylaw.co.uk/system/uploads/attachments/0002/0863/D50K.pdf
which allows the court to decide how arrears should be enforced
If the court believes that your ex is deliberately trying to avoid paying spouse maintenance then they can indeed Order that he still makes the same payment despite his meagre income - but obviously I have concerns about what the attitude will in fact be

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