CM in court order???

Hi all

My partner is going through divorce (for the last 2 years) and it appears that they are about to reach a settlement.

The FDR is scheduled for the 8th Dec. STBX made a formal offer in September which she reinforced in several emails since. It includes a Clean Break, a split of the MH (£70k equity) as per contact proportions of their 12 year old son (55% mother - 45% father) and my partner taking on almost all their debt £17k.

The STBX is diabetic since childhood and has a notorious history of not taking insulins or crash dieting or taking double doses. She's 50. She lost her eye when she was 20 through crash dieting. However she has kept a well paid senior management job all her life and has no breaks in employment.

My stepson is a lovely boy, 12 years old, with mild Aspergers syndrome which his mother seems to be obsessed about. A lot of the time she appears unable to talk about him without mentioning he has a "disability". However he was assessed for DLA and was rejected as too mild a case. I think most of his problems came from bad parenting (and I include my partner) as they seem to have reversed in the last year he's known me and my partner changed his parenting consciously.

The STBX was asked at first hearing to provide medical evidence of her and my stepsons condition as she wanted to claim SM. She refused to do so subsequently so she dropped the SM request in the September offer. Last week she revived it.

She has also refused to provide credit card and savings account statements so she has not disclosed fully. My partner has disclosed fully and has now answered all the questions from the first hearing. She hasn't answered any.

Given the mother is disabled (severely according to her) and has an alcohol problem which she has received medical help for in the past but never resolved fully, my partner and I would like 50% care of my stepson. She has refused that.

Sorry for long post, my questions are:

1. It's a week before court. We have drafted a Consent Order and she keeps changing her mind whether to sign it. She blames her solicitor saying the solicitor will tell her off if she does. In hope that it will be settled and without any answers to the questions my partner hasn't been able to prepare for court. What can he do?

2. She has now asked (1 week before the hearing...) that he includes a child maintenance order with the court order. We know that the courts have no jurisdiction and neither earns more than £100k. Why is she asking that and can she?

My partner's solicitor has been off sick and the replacement seems to think it's ok to stereotype that all fathers don't care and all disabled people are victims. She is around only part-time and we are worried sick.

Should he go to court or try and negotiate?

Thanks very much!!!

Hi Zenia,

Welcome to wiki

I'm no expert and may not have understood your post, but CM will have to be paid regardless of whether its a personal agreement, Court Ordered or via CSA.

Would the Consent Order for CM be using the CSA guidelines?

After 12 months of Consent )Order CM either parties can apply to the CSA if adjustments are necessary.

Also check the end triggers are fully understood by both parties.

Take care

WR x

Thanks WR!

We do pay the CM amount as per CSA. I think STBX is just being very awkward and is trying to get some assurance that even if my stepson wants to see us more she will get a fixed amount of maintenance.

Can she do that and would it have any value beyond the initial year?

Also she has a monthly net income higher than my partner so if a court decided the amount for their care split I doubt it would be as much as the CSA.

Zx

Hmmmm. Really this should have been dealt with some time ago. But not knowing the questions it's hard to judge how important it is that you have the answers. The points at issue may be trivial and not worth having an argument about - but then again they could be crucial.
There are various ways in which a recalcitrant litigants can be ordered to cough up the answers to the questions which almost invariably arise. But at this stage - - - -
I honestly can't make a judgment. On your other question I personally would be much more specific. I do not like combined orders for spousal and child maintenance.
My main reason for saying that is that child maintenance is calculated automatically by reference to the income of the paying spouse, so that if, for example, your income reduces sharply, then applying for a variation to the CSA ought to be relatively easy, if you can prove the reduction. With a Court order you have to go to Court and contested applications can be disproportionately expensive.
The other issue is when the maintenance for the children ends. If you have a combined order it's important to be clear as to when the payments come to an end. With child support it's relatively straightforward. It's usually when the ' child ' attains a certain age or ceases full time education. There is very little scope for argument about it.
On the other hand a Court order ends when the order itself stipulates that it shall end. With spousal maintenance it can be totally open ended, payable until the death of either spouse or the re-marriage of the recipient ( and don't I know it ! ) But really you don't want to be stuck with an order which includes an element of child maintenance which might continue to be payable after the ' child ' is no longer dependent. To be sure, you can apply for a reduction. But you may find that by now the wife is used to the income and is reluctant to give some of it up - in which case you may be set up for a fight in Court. She may argue she still needs the money and she may even be right. But the burden should be on her to prove that she still needs the wonga - not on you to prove she doesn't.
I am not suggesting that many of these difficulties could not be avoided by a suitably drafted order. My advice neverthless is that you should reject any such suggestion and, if you have to pay spousal and child support, leave the child support to the CSA where it belongs.

LMM

Thanks LMM!

That is my instinct too. There's no chance she could get SM,her income is at least 25% higher than my partner's. It could only ever be nominal until my stepson is 21. She also has a huge pension, over double my partner's and he's not claiming any of that. She is now 50, 10 years older than him, so she must have some access to it if things go wrong. He couldn't access his yet.

It is strange that she wants a court order for CM. It mint be just a control thing, she might have just run out of things to ask. My partner is thinking whether he should just say yes to get the order signed as we know the CSA is the appropriate route anyway. However we need to know if there are implications if we get my stepson more time. Would the CSA amount prevail?

I agree about being too late for court. I am very uncomfortable with the way we hoped she would keep to her offer and we thought it was going to be OK. We are now in trouble I think especially since our solicitor is off sick indefinitely.

Thanks again!

Zx

Also to add the questions were very important. One of them was to provide evidence of her mortgage capacity. She claimed she could only borrow 80k. We had confirmation from 2 independent financial advisors she could borrow 220k for her income health and age.

Another was medical evidence she will become severely disabled soon. She has not provided proof of her savings or her debt.

I would think they're all quite key.

Zx

Sign in haste and repent at leisure.

One type of order that is often used in cases of combined CM and SM is called a Segal order, after the judge who first used it.

Let's suppose you have an order of £8000 a year of which £5K is SM and the other is CM. The recipient, usually but not necessarily the wife, can apply to the CSA for an assessment more or less at any time after a year. So if the CSA make an order of say £3K p.a. the payer would have to pay £11K. To avoid this difficulty , the Segal order provides that if the CSA make an assessment, the amount of the assessment is automatically deducted from the global figure so the payer is not forced to pay twice.

But the problem with you is that if say your partner gets a reduction to say £2700 p.a. on account of greater access, then the £8000 continues to be payable. What she loses on the swings she gains on the roundabouts.

I'm sure that it's possible to avoid this problem by appropriate drafting. However :

Do you know how much a contested application through the Courts is likely to cost ? I do not know if the experience of other wikivorcers is typical but if your partner has to pay £6000 to get a reduction of say £300 per annum, it will take him 20 years to get his money back. I am not in practice in this field and never was ; but I don't think £6000 is an exaggeration.

I have no idea why. It does not take a lawyer to present to a Court a detailed, properly documented, statement of your income and expenditure. I see no reason why a lawyer is needed at all in quite a number of cases.

I've just read your latest post. I agree, they do look pretty significant. Dare I suggest you have a solicitor ? They should have some means to continue to deal with your case ; or if not, to apply for an adjournment.

LMM