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Private agreement which now cannot be afforded

A

AmIAStepMumNow

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Hi All,

My partner, who is a great dad to his 6 year old, sees his daughter every other weekend and extra during holidays.
He naively agreed to pay £2k a month in Child Maintenance as this was the amount that his ex said she needed in order to meet the household bills. (for background she works part time but is a low earner but has a shares portfolio and very wealthy parents who subsidise her lifestyle and holidays from time to time).

My partners work has taken a bit of a dip in income as he struggled hugely after the separation and the divorce and then not seeing his daughter each day.
So whilst he is still on what many would class as a good income - the private agreement of £2k p/month is proving difficult to stick to. It has meant that I am now paying the majority of our joint household bills as he cannot afford to pay his share as well as his promise to his ex. So it is now impacting me financially too as I cannot save as much each month as I would like.

If he were to go to the CMS they would say his payments should be nearer £600p/m but this massive drop would obviously impact his daughters life and would mean his Ex cannot afford to stay in the family home (he walked away from all equity and furniture etc and let her keep everything).

His ex does try it on from time to time by asking for MORE money for school shoes or birthday presents etc.. to which my partner refuses obviously...

But it can only be a matter of time before the ugly discussion arises about varying the private agreement (her parents have already asked for him to sign a legal document confirming he will always pay that amount no matter what).

Does anyone else have any experience of over committing on finances to then be caught out later on when personal situation changes?
Ive read somewhere that if we open the case with the CMS then we are the only ones that can then close the case - and he can then pay the amount they state and anything over and above that is discretionary (and perhaps based on good behaviour by his ex!!!)
Additionally - the round trip to pick up his daughter is 220miles on the Friday and again on the Sunday and his Ex outright refuses to meet half way or EVER do anything to assist - simply stating that it was our choice to move to our house and therefore our problem.

I have asked her if we can swop around the weekends arrangement too - as our holiday abroad means there will be a 5 week gap without seeing his daughter and simply got the response that Mum has already made plans for all her weekends in 2024... so cannot change them.

It just feels that everything is always MUMS way - and we don't have a say over anything yet my partner pays for everything. And there is a little 6 year old in the middle of it all that when we cannot have her due to a holiday (rare) she is dumped on relatives as Mum won't ever change her own plans.
 
For added info in case its relevant: Their divorce was finalised by the courts in 2020 but no financial agreement ever done and the child maintenance agreement and his allocation of alternate weekends is very much a private agreement and never formalised legally with solictors.
 
Welcome @AmIAStepMumNow
Your partner has every right to change to a lesser payment as per cms.

Bloody cheek that the exs parents are trying to dictate what your partner does.

I'm guessing your concern is that if your partner pays less maintenance (even if it's more than cms amount) the ex will stop time with the daughter?
 
Is there a child arrangement order for the alternate weekends and holiday time?

If there is not, his ex has the same freedom to withdraw child's time with him as he has to withdraw the informally agreed financial support.

I think he should get legal advice on whether or not his ex is still at liberty to make a financial claim against him.
 
thanks for your input... yes its a bloody cheek... and he has never once missed a payment in 4 years so their request is not even based on him being unreliable! Also.. what if his circumstances were to change? Illness or job loss? They sill want him to pay regardless! Anyways... Our concerns are multiple..
• she may try to stop time with his daughter
• she is highly likely to be unable to stay in the detached house in an expensive part of Surrey and so may move to live in her parents mansion which is even more miles away from us
• a house move to a new area means new school and impacts his daughter massively so she is yet again the one suffering

I think he is more keen to want to dial up his workload to be able to afford the payments he has promised - but to have the CMS letter up his sleeve to whip out when the Ex gets disorderly again and perhaps use that as leverage for more co-operation from her and more understanding
 
there is now formal child arrangement order or financial order in place... They never closed off that loop after the divorce was finalised. What do we need to do? and how? (can it be done online without the expense of lawyers/)
 
Hi and welcome. An important point. When he pays this £2,000 a month, does he pay it by standing order with a refertence clearly stating "Child Maintenance"? Or she could say he has never paid any. It helps to be able to evidence he has been paying it. Clearly things could become hostile if he tried to reduce it. He could apply to court for a Child Arrangements order to formalise the current arrangements - so once he has that it might be easier to deal with reducing the payments as she'd have to follow the order. The problem there is the court might say no order is needed as he's getting regular time by agreement and no issues. So if going that route he'd need to be asking for more time than he has now, to justify the application. With the distance it wouldn't be more than every other week-end during term time anyway. Does he currently get half of all school holidays? Or just some of the school holidays? If he doesn't get half the school holidays, that could be a reason to apply.

It sounds a difficult situation. There was an agreement and his ex expects it to continue. So he is basically paying for hassle-free child time. I did that for a long time as well - to see my son as much as possible. Then some other crunch point came along and I had to apply to court anyway.

What does sound a bit concerning is if the divorce financials weren't finalised. That presumably means there was no clean break - which means she could claim capital from him at any time in the future. Eg if he inherited money or sold a second property etc. I think that needs to be tied up. Presumably he's nervous of rocking the boat there too - understandably.

Even if things were really amicable and they had mediation, it's unlikely anyone is going to say - yes I'll accept less money. Are you sure he's actually fully divorced and has the decree absolute?
 
Thats super helpful Ash thank you - now let me see if I can answer your points in more detail.
I don't know what banking ref he used previously on the payments he makes but he has now started calling them 'DAUGHTERS NAME' Money/Maintenance. The amount hasn't changed in last few years (well actually its increased as Ex wanted to add on kids clubs and inflation) but it would be easy to prove what its for as he always texts her to ask for confirmation of receipt.
We only get some of the school holiday time with his daughter, not half, and we never get first option on the dates - that is always dictated to us. For example: the Ex has arranged a summer holiday for August already and due to the way she selected her dates, it means he won't see her for 6 as he only gets her alternate weekends and she won't budge or swop the rota to accommodate him.
The Decree Absolute was issued (weirdly his came through on the same day as mine) so he is divorced but there was no Financial Agreement - he simply let her keep all the house and all its contents and the family car and walked away with just his clothes and personal belongings in to a rental.
How do we prevent her coming for future income or assets? Given we have now moved in to a jointly purchased property together?
As soon as we start to close off the loose ends with anything like that she is going to get suspicious and difficult - but leaving them open is a huge risk...
 
As I said I’m not that up on divorce matters - more child matters. But I’m surprised a decree absolute was issued without something formal about finances. Suggest he gets a half hour legal advice on that asking if he needs to do anything to ensure there is a clean break.

Also sounds like he could apply to court for a CAO. However he would need to have tried mediation first and if that fails - get signed off to apply to court. He’d need to be prepared for the fact his ex may well stop him seeing his daughter if he applies to court - but hopefully he’d get an interim order - it could be three months though abd she could look bad if she did that fit no reason so hopefully it wouldn’t happen. It may also cost money going through court. Mainly you need someone for hearings.

They can actually reach a consent order by agreement so if he’s happy to accept the current agreement he could ask her if she’d be prepared to make that agreement into a consent order and formalise things. If she says no then she wants to keep all control and may change things in future.

He could also discuss the finances at mediation.
 
Thanks again.. super insightful.
Their divorce was a DIY version that they did themselves using the online government portal. So lawyers were not involved.
But I wonder if they had to state whether it was a clean break divorce when they were applying - as I recall from my own divorce that the initial forms require you to tick a box stating that or stating there was a maintenance situation.
No idea how we would back track to look to see what was applied for.

I may be proven wrong but I don't believe his Ex will try to stop him seeing his Daughter - as from all the signs we have seen over last couple of years she can't wait to offload her on to someone else and seems to put her own social activities as a priority over the daughters needs... She won't ever change her own plans if there is an illness or something causes us to miss a weekend on our rota... the girl just gets dropped off to another family member instead.

So.. to ensure I understand your advice properly... it sounds like we need to:
• Close off the Finances following the divorce - via a legal Financial Agreement.
• If he is happy to continue current arrangement then get a Consent Order agreed by both parties (this is the document that will close off the finances following their divorce inc assets such as the house and furniture as well)
BUT If he is going to want to vary the current Maintenance agreement then I guess it is best NOT to do the above as he would be considered in breach right?


How can his Ex really file a claim for his future assets given she kept the house, has a shares portfolio and a future inheritance from her wealthy parents.. Can she REALLY make a claim on his future income as well - given they are divorced?? She is worth more than he is on paper and he left the marriage with £40k credit card debt that she had jointly racked up.
 
Just thinking about this from a "smarter" angle Ash...

Could he propose a Consent Order that states
• she keeps all equity in house and all contents
• he pays of joint debts on credit cards
• she retains all savings acquired during the marriage and her own shares portfolio
and the child maintenance payments are based on CMS regulations with a discretionary top up payment to a maximum of £2k each month (so he basically has the power to vary the top up element if his financial circumstances change)


Im also wondering whether a judge would really approve a consent order where he promises to pay an amount that is so excessive and potentially unsustainable... surely that wouldn't be deemed fair on the Father???
 
Hi @AmIAStepMumNow ,

Welcome to the forum, great to hear you both have a good relationship with his daughter.

Sorry to hear about your financial situation and the quandary you find yourselves in.

@Ash advice is directing you to get stability in Childcare Arrangements by doing this first and foremost before you do anything else and don't even hint at the money side till its done, if at all possible.

Question above is key, does he want to change the current attachments in anyway as this will determine how you proceed in CAO progress.

Finance wise, if they're was no Financial Agreement, separate document, sealed by the court as part of the Decree Absolute then he is open to the claim albeit she may find it incredibly difficult to get anywhere, it would still run up a court costs and potentially legal fees to defend.

Was the house is his sole name?
Did he physically sign it over?
Was there any evidence he did that as an arrangement during or after the divorce?
Same questions for the savings
Same questions for the debt he took on
How large were the share assets?

It's been 3 years so she may have moved the savings and shares to someone else's name but theoretically in court you could ask for proof such as bank systems from that time

Is agree that a 30m with a few different solicitors will help you build up a tentative picture of where you stand!

MJ
 
Hi MJ.. thank you for joining the thread and for your input.
Yes we do both have a really great relationship with his Daughter, I adore her and take my role in her life very seriously (part of this I suspect feeds in to the Ex being disgruntled or jealous, which is understandable I guess, to a degree)
Let me try to answer your points as best I can.

• does he want to change the current attachments in anyway
No I don't believe he does - as much as he would love to see his daughter more, he has to work pretty hard to be able to pay the amount he initially agreed to, and having his daughter more means he would have to work less.

Was the house is his sole name?
The house is a part rent/part purchase and he IS on the rental contract (still because she forged his signature) and the mortgage that was on the property was recently paid off in full by her wealthy parents.

Did he physically sign it over?
I don't know whose name was on the mortgage. I suspect only hers but the house was a joint purchase. He has confirmed to her in writing (emails and texts) that he will make no claim on the equity accrued during the marriage and that she can keep the house

Was there any evidence he did that as an arrangement during or after the divorce?
The agreement for her to keep the house was before the divorce was finalised. He moved out in to rented and she remained in the property and kept all the contents and he made it clear to her that was OK and he agreed to it (bar a couple of paintings he purchased when he was young which we still don't have back, and photos of his family)

Same questions for the savings
This is a tricky question to answer - as she controlled all the finances and they had no joint bank account.
He earned a high wage in a previous job in the years before the separation and would transfer the majority of his wages to her bank account for bills etc which she then managed.
There was a significant level of savings accrued as he paid way more to her than the cost of their joint bills, however it mysteriously ran out and he never quite got to the bottom of where all the money went and she wouldn't show details of her other bank account as she had two. Before he left the marriage he was deeply unhappy, and he just accepted it was easier to walk away than to challenge her and he left with £40k debt on credit cards that they both accrued during the marriage.

Same questions for the debt he took on
She knows the debt is a joint debt and that he is the one paying it off as he has referred to it in several arguments when she has come and asked for more money

How large were the share assets?
No idea but she gets dividend payments each month and I would imagine given her family wealth that these shares are significant in value

I appreciate the piece of advice about getting multiple 30m sessions from several lawyers! Hadn't thought of that! ;-)

not sure if the above answers help in anyway.
He knows he has been naive and some would say a 'pushover' but in some ways he felt it helped alleviate his conscience from walking away from a marriage and having to leave his daughter behind because the situation was completely untenable.

thanks in advance
 
Just to be clear - a consent order for Child Arrangements is not the same as a consent order for Finances.

The consent order I referred to was purely to legalise the current Child Arrangements in a court order - by consent as opposed to applying to court and asking for it. The order is just the same as if the court ordered it.

And Magic is right - that is what I was suggesting. Get the Child Arrangements legalised first. Then he's on solid ground before trying to negotiate any finances, because she couldn't stop his daughter coming and would have to follow the order.

Technically, once he has the Child Arrangements order, he wouldn't have to pay her anything more than the CMS assessment. In fact having a Child Arrangements order is helpful regarding Child Maintenance assessments anyway. Because then the CMS can see exactly how many nights he has. Without an order, some ex's don't tell the truth about how many nights he has (or stop the child coming to get higher maintenance).

I think she would be very angry if he reduced the maintenance - and may well decide to stop his daughter coming - which would also mean the Child Maintenance assessment was higher. That's one of the problems with Child Maintenance being linked to the number of nights with Dad - it's quite draconian.

So the first thing is to ask her, in writing - eg email or text - if she would agree to put the current agreed schedule, into a consent order, to formalise it. She may say no (which would mean she wants to keep the option to reduce or stop the time) or she may say - only if you legalise the financial payments - which could be tricky.
 
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Just resurrecting a slightly old thread and hoping ASH might see this and MagicJ...
My partner started Mediation and texted his ex to say she should be contacted by them.
The main purpose of wanting Mediation (and in order of priority) was to
• get a more formal Child Arrangement Order in place as currently there isn't a formal one
• Get a formal assessment on Child Maintenance payments from CMS as his income has dropped significantly and he can't afford the private arrangement without putting himself in finical dire straits
• Get a Financial Order in place as it was never done when he divorced his Ex.

However

It the text to his Ex to say he had started mediation process - triggered his ex to appoint solicitors and they have gone straight to wanting financial order done... and he has been asked to complete a Form E detailing all his assets within 21 days.

Tactically we want to be very careful how we play this and how we respond - as our primary objective was to get Child Arrangement in place and THEN the financials so that we still had that as some kind of leverage to get the CAO...

What would peoples recommendations be as to how to respond?
I was thinking perhaps along the lines of 'we are in the process of completing the Form E, however it should be noted that there is no formal CAO in place and due to some concerns we have around the current arrangements which are not equally share, fair or reasonable - we would like to get those resolved before any financials are discussed.

Any thoughts?

Thanks!
 
Hmm. Any response to the invite to mediation? Obviously not by your ex or her solicitors directly, but wait and see what the mediator says. If she says no to mediator then he needs to ask to be signed off asap.

As to whether or not you need to complete Form E within a period of time, you really need legal advice on this - suggest a free half hour.

I would avoid communicating with ex's solicitors as much as possible as they are NOT going to be reasonable. They are looking to win a case for their client - and also you want to keep some cards close to your chest.

You could reply "Thank you for your email and I am taking advice".

And leave it at that - nothing else. Don't be pressurised.
 
Ahh thank you Ash. Communication of late has become really quite fractured and Ex no longer passes messages on to his daughter so we barely hear from her when she isn't with us. Which is really sad.
His Ex replied to the Mediation message to say she has engaged lawyers (odd to go to Defcon 1 and not agree to mediation but suspect she wants to be the one in control of everything again as always).
With regards to Form E: he left marriage with significant debt on credit cards (joint expenditure) and doesn't own a home and his car is £2000 so he has no significant assets she can come after - but she is under some illusion that he has assets to declare.

Can they force us to complete Form E? (interestingly their email said 'we attach a blank form E for you to complete" and the email failed to include the attachment!! ha ha
 
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