Be wary of agreeing a spousal maintenance cleanbreak in preference for generous child support

financial supportIn mediation, when it comes to the point of discussing maintenance and divorce, many separating couples are not aware of the distinction between child maintenance and spousal maintenance.

Most parents are very happy to pay child support and have the online Child Maintenance Service formula to guide them.

However, the same parents are often unaware of the decisions they will have to make about Spousal maintenance, the options available to them and the reasons why Spousal maintenance might be very sensible, especially when there are young children.

But, before I come on to Spousal Maintenance, let me return to Child Maintenance, for a moment.

The main messages to get across to most separated parents is that;

  1. If they cannot agree a child maintenance figure for themselves, the court has no jurisdiction and they are left with having to apply to the CMS (used to be called the CSA).
  2. If they can reach a child maintenance agreement and this becomes part of their financial consent order, the payer or payee will be entitled to apply to opt out of the court’s jurisdiction leaving them with the CMS.

All well and good, you may think.

But, what if, a parent with most of the child care and smaller salary (and smaller earning capacity) because they have always been the main child carer, agrees to a spousal maintenance clean break in return for receiving an amount from the payer of more than the CMS formula.

Many separated parents prefer to become financial independent from each other, if possible, because this feeds into their need to feel autonomous.

Again, you may think, all well and good.

However, what if, after 1 year of the child maintenance court order being in force,  the payer decides, for one reason or another, to opt out of the court order and into the CMS.

In this scenario, the result would be a potentially significant drop in the payees financial support with no entitlement to apply to have this increased because the CMS is calculated on the basis of a strict formula and the payee would have given up their entitlement to apply for spousal maintenance, in such circumstances.

In these circumstances, and for this reason, some parents decide to keep in tact a nominal spousal maintenance order of £0.05, just in case.

I describe this option to my clients as the ‘just in case’ option, just in case, the CMS simply is not enough and the payee needs additional support which the payer is not prepared to provide, in circumstances in which is would be reasonable to do so.

The fact is that, at the time of mediation, it is often impossible to predict the future, only take into account the circumstances as they are now and provide for the ‘just in case’ worst possible scenarios.

To reassure the payer and for the sake of clarity, some parents like to describe, in the mediated outcome statement, the kind of circumstances in which the payee might be justified in applying to increase their nominal spousal maintenance order.

As always in mediation, it is about exploring all the options, from each person’s perspective, in order to find a solution that meets enough of each person’s needs and interests and, of course, the children’s needs.

 

Be wary of agreeing a spousal maintenance cleanbreak in preference for generous child support
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