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Ask Clare Your Own Question
Clare
Clare, Family Solicitor
Category: Family Law
Satisfied Customers: 34235
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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Clare I have submitted the Form 11 requesting a suspension

Customer Question

Hi ClareI have submitted the Form 11 requesting a suspension of maintenance payments as suggestedMy ex – unaware of the above has today sent the following e-mail“I have been to see a solicitor and taken legal advice. It was confirmed that you are most definitely in breach of the court order as there has been no order to vary by the court and there has been no agreement made between ourselves. The order is still in force.I have therefore been advised to register the maintenance order for immediate enforcement and collection of arrears which can be done at source through your employers if necessary.I hereby give you 7 days notice to make payment of arrears owing.”Any thoughts on how I should proceed ? Based on her past performance its very unlikely that my ex will have mentioned to the solicitor that we have been to court
Several time recently and that a recent final trial was adjourned and that she is aware that my earnings have reduced dramatically - If i`m forced to pay this I will have to stop school fee payments or apply to cut the children`s maintenance
Submitted: 1 year ago.
Category: Family Law
Expert:  Clare replied 1 year ago.

Excellent news - she will get a shock if she tries to enforce as you will ask the court to suspend the payments and will be successful.

I

Clare and other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Will I be required to attend a hearing or could a DJ order a suspension of spousal maintenance immediately on the basis that the courts have evidence that my income has reduced ? from your experience from the point an application and fee is received by the courts what is the turnaround time ie - when the form is placed in front of a judge to issuing an order to suspend ???
Expert:  Clare replied 1 year ago.

There will have to be a hearing I am afraid

Customer: replied 1 year ago.
Even though they have evidence that i was unemployed and salary cut and that 3 judges clearly failed to look at my position. Whilst i believe there is no bias torwarda the wife in these cases im struggling to understand how the "system" helps somebody like myself. I assume my ex will have to go through the same exhaustion process to enforce payments which i clearly now cannot afford ?
Customer: replied 1 year ago.
My ex made the point that she could take funds at source , i presume this cannot happen without some court intevetion or legal contact with myself first ? My new wife has a career , she cannot work currently because of our 2 children i presume judges are not that stupid to understand that if its not worth me working i could just stop and my wife could go back to work. My ex would get nothing.
Expert:  Clare replied 1 year ago.

You have to attend the court and place your arguments in favour of a reduction and your ex has to have the chance to rebut them.

Equally she has to go to court to enforce the order - and you get a chance to oppose it

Customer: replied 1 year ago.
Ok i guess if her application somehow manages to leapfrog mine i will at least have a fair chance to explain my position Before any action is taken. And of course the court will be aware of the history and that i have applied to suspend
Expert:  Clare replied 1 year ago.

In fact the two cases will be amalgamated

Customer: replied 1 year ago.
Ok thats good to hear. Thanks
Customer: replied 1 year ago.
Hi Clare. Just been advised by the FRU that my application has been accepted and will be heard in 3 weeks ( 30 mins ). I havent yet received the order , is it likely that the order will guide me here on whats required ? Ie pay slips , update of my finances. ? Seems v small window to achieve this ? Any guidance here is appreciated , especially after the last hearing where there was confusion over bundles
Expert:  Clare replied 1 year ago.

This will be a directions hearing at which the Court will make Orders about what paperwork will be required for the next round.

You can also ask for the current ordered to be suspended whilst the matter is ongoing

Customer: replied 1 year ago.
Thanks. The current order as in my 2008 divorce order ? Ie Spousal and child maintenance ? When and how would i ask for the suspension ? In court at the directions hearing or via another application form ?
Expert:  Clare replied 1 year ago.

In court at the hearing and yes the existing Order

Customer: replied 1 year ago.
i would ask that the current order is suspended whilst the matter is "ongoing " is this possible for a DJ to order this at the directions appointment or would the supension be heard at a second hearing ? Logically it would make sense to do at the first appointment and avoid a second hearing settling our finances in november
Expert:  Clare replied 1 year ago.

There will have to be a second hearing - any suspension would be temporary - until the outcome of the application

Customer: replied 1 year ago.
Couls the DJ order a temporary suspension at the directions hearing pending evidence to show finances are lower at a second hearing ?
Expert:  Clare replied 1 year ago.

Yes the court has that power pending the outcome of the final hearing

Customer: replied 1 year ago.
Hi clare. The hearing has been set for thsi Wednesday. As it is a first appointment im not required to take anything along. My application is very clear however but from past experiance the DJs sometimes skim over the detail - will i get the oppertunity to present and ask that the order is suspended until the final hearing ( or a second hearing ) ? Does the fact that i had to stop paying my ex as i cant pay school fees and child maintenance and her maintenance have an impact here ?
Expert:  Clare replied 1 year ago.

I suggest that you prepare a short position statement setting out the current position and asking for the current order to be suspended

Customer: replied 1 year ago.
Something like this ? "Current Position Statement -
I lost my Job in November 2015 and did not start work again until February 2016. My new Salary is 57% lower and I now cannot afford to pay Spousal maintenance, Child maintenance and School fees. This legal process started in August 2015 and our financial differences should have been resolved at a final trial in May 2016, Unfortunately the hearing was only used to narrow “points” as there was a problem with the Trial Bundles .The final trial has now been set for the 2nd November 2016 – As this situation is ongoing I would ask that the current order is suspended"
Expert:  Clare replied 1 year ago.

Yes polished up that covers it very well

Customer: replied 1 year ago.
The dj didnt suspend and she couldnt enforce ( respondendant hadng started an enforcement order ) suggested that i try and pay my ex something. That was until i said this wasnt going to work as i had a new wife and 2 small kids The Dj hadnt read any of the notes - will now have to in limbo until the 2nd Novemeber
Expert:  Clare replied 1 year ago.

Why did she not suspend?

Customer: replied 1 year ago.
She didnt give a reason. i dont want to say that she prejudged the situation however it was clear that she hadnt read any case history. Even though i gave a summary of my position she wanted to try and resolve somthing that was not resolveable in a hour session. She tried to get the final trial date moved but that was not possible. The frustration for me is that it appears that your not taken seriously if you represent yourself. I originally took my ex back to court last year because our order states that school fees which form part of spousal maintenance should be paid by bonuses only and any decision to move a chid from that school should be decided by the parents or the coutts. As you know i have a school fee order so i have had to find the money ( finishes next month ) and took my ex back to court because she "went quiet" avoiding mediation etc. At no point throughout these proceedings have the DJs looked at that and said to my ex why did u not adresss this ? The order is clear etc. The DJ yesterday said that altough id lost my job last year and my ex was aware and that i was no doubt stressed for 4 months even though 9 mths has passed it is still a shock for her and i should think about paying her something " go a bit more overdrawn the court will take into consideration at final trial but of course you need to contact on a without prejudice basis " this line of suggestions only stopped when i reminded the DJ that this was a directions appointment and that no way could i go further into debt - i mentioned that whilst my new wife who could not work and 2 small children were secondary in these proceedings i still had a responsibiity to look after them My ex asked why the DJ was not going to make me "pay". At this point it became apprarent that my ex had not applied for an enforcement order. The DJ then explained that my application and if she had applied for one would be heard in November. She then went onto advise my ex how to apply for one " go to the first floor". And that was basically how it was left. Feels like a complete waste of time to be honest. I think i need to complain but not sure how to do that ? Im not going to put myself in more debt to help my ex when she hasnt helped me with our sons school fees. ( she has a house thats paid for i dont ). Anything i could or should do before the final hearing in november ?
Expert:  Clare replied 1 year ago.

You have done everything correctly so at this stage you need to drop it to a nominal payment (to show willing) and allow arrears to accrue until November when the matter will be resolved

Customer: replied 1 year ago.
Nominal ? you mean a gesture ? My last school fee payment is on the first of August , perhaps I will pay something then , but It will be from overdraft
I don’t want to sound down , but why do I feel this whole process is favouring my ex , unless i`m being over cynical here I do not think the
DJ will make any allowance over school fees , and I will be required to adjust my life in some respects
Whilst my ex is primary In this matter surely my 2 children from my new marriage have to be fed and have a roof over their
Heads… Our home is in Joint names so it`s very unlikely my new wife will allow me to sell or remortgage to fund my ex
And of course its in nobodies interest that I give up work and look after the children while my wife picks up her career again , by this I mean
I hope the DJs are smart enough to realise that nobody is going to work just to pay their ex
Expert:  Clare replied 1 year ago.

You were certainly unlucky at the last hearing - but provided your income has indeed decreased as dramatically as you say then you will eventually win through.

Calculate how much less your income is than it was and apply that percentage to the maintnenance

Customer: replied 1 year ago.
Hi Clare After paying outstanding school fees , I applied the percentage reduction in income to spousal maintenance and advised my Ex - that reduced payments would commence on the 1st August ( My Ex actually approached me on a Without Prejudice basis asking if I would consider doing this ) The hearing has been moved to the 5th September ( previously 2nd November ) - Do you think I should consider hiring a legal representative and if i do this is my Ex required to have one ?
Expert:  Clare replied 1 year ago.

It is up to each party if they wish to have representation or not - there is no requirement for both parties to be represented

It is up to you if you feel that you would prefer to have some one else represent you

Customer: replied 1 year ago.
Im happy to reprsent myself but slight reservations over whetheR. I will be taken seriously
I Would obviously like this dealt with fairly and quickly
Customer: replied 1 year ago.
Do you think (based on what you already know ) employing a legal representative would help to get a fair and reasonable outcome ?
Expert:  Clare replied 1 year ago.

It is often better to have a second opinion of the case you are making - so yes it may help but is not necessary

Customer: replied 1 year ago.
Hi - Have decided to represent myself , the DJ managed to alter dates and we now have a hearing set for September - Can I check how many trial bundles are required ? I only made 2 last time Am I right in thinking 3 ? one for DJ , one for Respondent and one for myself ? thanks
Expert:  Clare replied 1 year ago.

Yes that is correct

Customer: replied 1 year ago.
Hi Clare - Bundles submitted to all parties and Trial date set for next Monday - Other then producing a skeleton argument ( to direct questions and focus evidence ) is there anything else that I need to do ?
Expert:  Clare replied 1 year ago.

No you are all set

Customer: replied 1 year ago.
Hi Clare - End result ; 40% cut in spousal maintenance and Bonus claims dismissed , Joint Life agreement terminated , Spousal maintenance to now finish when my son finishes University ( 3.5 years ) Will be a clean break/no future claims from respondent , kids maintenance cut by 20% , No further pension or lump sum adjustments. I have had to set aside claims for school fees and pay spousal maintenance arrears - Do you think this is a reasonable outcome ?
Expert:  Clare replied 1 year ago.

Which part are you not happy with?

Customer: replied 1 year ago.
its more to determine whether on balance I got a good outcome , I think I did. just not sure..
Expert:  Clare replied 1 year ago.

I think you have done exceptionally well

It would have been nice to have got the arrears remitted - but that would have been the cherry on the icing on the cake - and you managed very well.

As a guide if your ex was very unhappy at the end you did very well indeed