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Varying Maintenance Orders: Some Tips.
8 November 2008

You've started buying supermarket own brands, you've become conscious of turning off lights, you take packed lunches to work, you sometimes leave the car at home, you've cancelled the posh gym membership, and now you're looking at where else you can make financial savings in these current difficult economic times.....

Maintenance: can you save on that? Or indeed, could you get more if you're in receipt of it? And is it a good idea to try?

However friendly relations with your “ex” are it is unlikely that he or she will be delighted to be asked to pay more money, or indeed get by on less, so there are a lot of things to consider before taking steps to try to vary a maintenance order. It can of course have damaging consequences to relationships, especially if not handled properly.

If you are the person paying maintenance:

If there is a court order stating that you should pay a certain amount of maintenance, then it is crucial that you do not simply stop paying if you find yourself in a difficult financial situation as you will be breaching a court order.

The first step is to approach your ex-partner and see if you can re-negotiate the figure, even if just for a set period. If you are able to agree it is advisable to see a solicitor to have the agreement legally documented. However, many people will not be able to agree a reduced payment as easily as this, either because relations are not good or because their “ex“ feels unable to accept lower payments.

If it is not possible to agree then the next step is to see a solicitor to try to assess your likelihood of success if you were to go through formal legal channels. A judge is not going to be impressed by an application that simply states your cost of living has gone up, because that same argument will of course apply to your ex-partner. To succeed on a formal application you will need to be able to demonstrate to a judge that there has been a significant change in circumstances, either you are in demonstrably worse financial circumstances – for instance, you have been made redundant or can no longer work, or that your “ex” is now in significantly better financial circumstances.

There are risks to making an application – once faced with an application to vary maintenance a judge gains other powers that might not be attractive to you – in some circumstances the judge could capitalise maintenance by awarding your “ex” a lump sum, or he could potentially give them a share of your pension. You could also be ordered to pay costs if you are unsuccessful, or do not conduct the proceedings properly. A specialist family law solicitor should be able to advise you of these risks in your case.

If the Child Support Agency has jurisdiction on any child maintenance in your case then you should contact them if you believe that you are paying too much – this could be for a variety of reasons such as your child or children are staying with you more often, you have another child now, or that your income has reduced. You can run a calculation on the CSA’s website: http://www.csa.gov.uk/en/setup/how-maintenance-calculated.asp.

And last but not least, there are the consequences. If you do succeed in your application will you leave your “ex” and children in poor financial circumstances? If so, you may wish to look at other ways around this if there are any.

If you are the person receiving maintenance:

To succeed in an application for more maintenance, you are likely to need to demonstrate that something has happened that was not foreseeable when the order was made. For example, this could be because you had to give up work for reasons beyond your control, but you will still need to show that your “ex” can afford to pay more too. Many maintenance orders are drafted to increase yearly in line with the Retail Prices Index so if that is the case, to an extent your maintenance will catch up with the cost of living in due course. You can find details of RPI on the following website: www.statistics.gov.uk/downloads/theme_economy/RP02.pdf

If you are in financial difficulty due to your own financial mismanagement it is unlikely that a court will look favourably on an application as a recent case illustrated.

If possible, it is generally beneficial if you are in a position to broach the subject with your “ex” first, again consulting a family law solicitor for next steps.

If the Child Support Agency assesses the level of child maintenance in your case and you believe that your ex is earning more now, it might be time for a revised assessment, and you should contact them to discuss this. To carry out a calculation see: http://www.csa.gov.uk/en/setup/how-maintenance-calculated.asp

Conclusion:

Whether you are the payer or payee of maintenance, an application to vary maintenance should not be made without expert legal advice and proper consideration of the advantages and risks. If you would like further advice please contact the team at Tony Roe Solicitors on 0118 9302360 or by e mail: info@tonyroesolicitors.com.

Tracey O’Dwyer

Solicitor

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