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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11155
Experience:  30 years as a practising solicitor.
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I'm looking for an approach/formula to working out term

Resolved Question:

Hello. I'm looking for an approach/formula to working out long term maintenance amount to my highly special needs step son who is turning 18 in 6 months, when prior maintenance agreement of my husband and ex-wife/mother of the son will have to re-drawn. When the divorce/maintenance agreement was drawn 17 years ago – my husband had a highly paid job and it wasn't clear how the son would progress. We know now that he will be in full time care for life and he is in receipt of highest level special needs benefits, allowances etc. His mother is now sole guardian as we didn't succeed in joint guardianship for complicated reasons that we don't live in the same town where the son lives and goes to special school whilst living with his mother who is carer and doesn't work. The mother now decided to sell her home (which my husband gave her) and to move away. She receives a very high amount from us which she most likely expects to continue. The amount equates to 30% of income and on a long term basis is unaffordable because my husband is nearing pension age (54) and pension is almost non-existent. Considering son gets good state benefits and mother will cash in on sale of house, and that we both are getting older, income is not what it was 17 years ago, and pension promises to be very little - what should the amount be in terms of current income ratio. Or any other way of looking at calculations. Any direction is appreciated. thank you
Submitted: 10 months ago.
Category: Scots Law
Expert:  Nicola-mod replied 10 months ago.
Hello,
I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.
I wonder whether you're ok with continuing to wait for an answer. If you are, please let me know and I will continue my search. If not, feel free to let me know and I will cancel this question for you.
Thank you!
Nicola
Customer: replied 10 months ago.
I am happy to wait. Perhaps you could extend to non-scottish lawyer as principles should be universal. Thank you
Expert:  Nicola-mod replied 10 months ago.
Hello,
We will continue to look for a Professional to assist you.
Thank you for your patience,
Nicola
Expert:  JGM replied 10 months ago.

I am a lawyer in Scotland. What is the basis on which you contend that your husband has a duty of maintenance?

Customer: replied 10 months ago.
thank you for your response
There is a moral basis - the disabled person is my husband's son who he sees periodically in Scotland. We live in England. There is also contractual side - the divorce agreement from 2003 states “The said payments shall continue for so long as the said child resides with Mrs O”. The son is 18 yo but remained of 12 months mental age so he continues to live with his mother who receives funds from us and from the (excellent) Scottish system. When the son stops being ‘child’ – in his case probably 20 as he is not in any advanced education - we would like to vary the financial agreement but we ought to come up to some ‘approach’ in terms of what we should do financially, if there is such thing as ‘typical’ that we can reference. We also have a 3-year old daughter together. The mother has been progressively more mean and demanding - refusing agreed access and joint guardianship, refusing excellent residential care option we found (understandably as she would lose her current carer income and all our maintenance), emotionally blackmailing, threatening police through fabricated abuse if money was varied etc. We want to propose sums in reference to what other reasonable person would do but realise such benchmarking is difficult but perhaps there would be similar formula that Child Maintenance use for their assessments in your experience?
Expert:  JGM replied 10 months ago.

I don't think you can easily put a formula forward for this although I do understand that a CSA type calculation might be a starting point. If you have a look at section 1 of the Family Law (Scotland) Act 1985, however, that provides for a general duty of maintenance for a child of between 18 and 25 who is in full time education or training. He isn't of course but a "needs and resources" test would probably be appropriate. In other words what does your husband's son need where there is probably state assistance and of course a joint duty of maintenance on the part of both parents. And of course what is affordable given your husband's financial commitments. I would find 30% of income unaffordable and inappropriate. About 15% would be my subjective guess.

JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11155
Experience: 30 years as a practising solicitor.
JGM and 2 other Scots Law Specialists are ready to help you
Customer: replied 10 months ago.
Apologies but I pressed wrong button. Your answer very helpful thank you - just a quick clarification - your mentioning of 15% - would that be on net income basis rather than gross.
Expert:  JGM replied 10 months ago.

Yes it would.