COURT ORDERS AND PERIODIC PAYMENT ORDERS

When you are going through the divorce or separation process there will come a point when you will consider the financial position. You will have to decide whether to have your ongoing child maintenance assessed by the CSA or whether to include it in your financial settlement with your ex-partner. This financial settlement, as well as deciding what happened to the family assets, like the home and car, is designed to make a provision to consider the ongoing support for the children (and in some cases the ex-partner).

As part of the statement of arrangements for your divorce or separation, it is possible to have your solicitor include an arrangement called periodic payments, which are in fact intended to be child maintenance payments. These periodic payments are a stated amount and payable at a stated time (normally monthly or weekly). Many divorced dads are happy to use periodic payment orders as a fair way of paying child support. The amount of money will in the first instance be a sum that is either agreed by both parties or assessed by the judge who is making out the order, the payment of which is then made over the term of that order (normally until the child is 19).

If you and your ex-partner are in agreement, then the judge is likely to ratify what your wishes are. Clearly there is great mileage in trying to mediate a settlement prior to getting in front of a judge.

• If your children are young, child maintenance over the long term can be a significant expense – and even more expensive can be the wrangling over how much. If possible, mediate a settlement as quickly as possible.
• Don’t over commit. You still need to consider your own financial needs.
• Make sure that your ex-partner knows about all your new expenses, as it will help in your negotiations.
• If you have hidden money away, or have assets that your ex-partner does not know about, then keep them hidden.
• Plan your negotiations.

It may be that as a result of giving up equity in your home (or other assets) that your ex-partner is reasonable about child maintenance. In which case, a court order for periodic payments is generally the best deal for a divorced dad. The great thing about an order is that it means that your ex-partner cannot go along at a later date to the CSA and obtain an additional amount. Only if a judge sets the court order aside can your ex-partner seek to involve the CSA. However, your ex can go back through the legal process and obtain a variance to the original order.

The benefits of a court order

The main benefit with a court order is that it is fixed. If your income increases as a result of a pay rise or a promotion or a new job, then having a court order works in your favour, as there is no need to return to court for a new order to be made out (it is always a good idea not to let your ex-partner know about any positive changes in your financial health!).

So if you are quite young, and you think that you will progress in your career, then a court order could be the best way for you to arrange your child maintenance. Also, a court order can’t deduct any money at source, so if you get bonuses or other benefits they can remain outside the payments; you don’t need to tell your ex-partner about any of these additional payments that you receive (as long as you don’t make the mistake of spending it in front of her).

Court orders are also not changed quickly. This is a double-edged sword and can act as both a benefit and a curse. From the positive point of view, the fact that there is a time delay in going through the legal process means that any increase in payments can be delayed, and also gives you the chance to hide any details that you can get away with. Court orders are also beneficial because their existence prevents your ex-partner from going to the CSA –which avoids a lot of stress and paperwork for any divorced dad.

The negatives of a court order

There are some negatives, and they revolve around change. If your circumstances change for the worse – you get made redundant, for example – you are still tied into the court order amount for child maintenance until you can obtain a variance –unless you can get your ex to agree to a reduction for the period of the unemployment.

That means that you will still have to continue to pay the full amount of maintenance even though your income may be non-existent. If you are going to be out of work for only a short time, then this of course will only be a minor problem and the cost of going to court for a variance will not be worth it. However, if the redundancy is for an extended period, then it could be worthwhile applying to court for a variance.

However, the biggest negative of having a court order is apparent only when the father has to go back to court to get it changed. Many divorced dads report that judges, in order to make an accurate assessment, order an almost forensic-type investigation to their finances. Judges can, and frequently will, order divorced dads to produce (and give to their ex-partner) copies of relevant bank statements for the last twelve months, along with listings of any assets and their values that they may have.

Clearly not many divorced dads, after several years of separation, want to give that level of details to their ex-partner, but they can be ordered to do so by a judge and have no choice. The judge then makes a new order of payment based on this updated information. It is almost as if the judiciary think that divorced dads are automatically trying to get out of paying a fair level of maintenance under a court order, and therefore go over the top in ensuring that they are not hiding anything.

Clearly if you have nothing to hide then this is not a negative. But most divorced dads who carefully rebuild their assets do not wish to let their ex-partner know what their financial state is.

Changing the court order

If you or your ex-partner wants to make a change in a court order, then it is a relatively simple but slow process. By filling in the appropriate form (available from the court reception), for a nominal fee (currently about £60) you can apply to the court for a change or variance to the order. The court will set a date for a court hearing, and the legal process will grind away until both parties have presented whatever point of view they have and argued the case.

It goes without saying that mediation is better than any court action, if only to save on the legal expenses for both parties. So in the event that you need to make a change to your existing order you are better off trying to do so informally with your ex than going (in the first instance) to the court.

A major point to be considered here is that you can be liable for the costs of your ex-partner’s application for maintenance payment. If a judge thinks that you have been unreasonable, and not taken sufficient steps to discuss and agree the issues with your ex-partner, or that you are just being unfair, he can award costs to either party. Solicitors’ bills usually run into the thousands, so picking up the costs for both sides is not a scenario you can afford.

If you have a court order for child maintenance then you are subject to a forensic examination of your finances when an application for a change in the order is changed.

• This investigation is subject to a court order.
• The judge will ask to see copies of bank statements, and any other financial records.
• The judge may backdate the order, giving him details over at least a twelve-month period.
• Copies of all this information will need to be sent to your ex-partner’s solicitor.
• At a court hearing you will be asked to explain every item of income, and made to justify any claims that you make on expenses.
• Your ex’s finances may also be subject to a court order, but if she has a partner, his records will not be required.

Getting rid of a court order

As with other types of court order it cannot be discharged until the applicant (normally the divorced dad) agrees to do so. Your ex-partner cannot go to court and ask the judge to discharge the order if it has been drawn up carefully, and if you are still abiding by the terms of that order. This means that court orders can be irrevocable, and once your ex has agreed to the terms it binds both parties (subject to any variances in that order).

However, if you wish to get rid of the order then you can apply for a variance – giving the judge reasons why it is not possible for you to adhere to the term of that order – and make changes that you wish as many times as you like – or can afford!