I can’t afford to pay maintenance anymore – what can I do?

If you have obligations under a court order to pay spousal maintenance or child support, problems can arise if your financial situation worsens in the future and you are unable to keep up with the payments.

Spousal Maintenance

The law acknowledges that life is unpredictable and circumstances can change. This is why a spousal maintenance order has the potential to be varied (up or down). Either the payer or recipient of the maintenance may apply to the Court for the maintenance to be reduced, increased, suspended or discharged. However, before rushing into a variation application to the Court it is very important to consider the following points:

1. Before making any decision, the Court will look closely at the other terms of the financial court order to check that you have complied with any other obligations you had under the order. For example, orders for payment of a lump sum or transfer of property. Obviously the variation application is less likely to be approached sympathetically by the Court if you have previously not complied with the order.

2. Legal costs in variation proceedings can easily escalate and become disproportionate compared to the amount of any reduction in the maintenance you may obtain. This is why it is especially important to obtain legal advice if you are concerned that you can no longer comply with the maintenance order or if you believe it has become out of date for any reason.

3. Importantly, the Court will look at all the circumstances of the case, particularly the welfare of any child, and must consider any changes in both parties’ needs, resources and earning capacity. It will also consider whether the person receiving maintenance payments can adjust to financial independence without undue hardship. Therefore, the applicant will need to show that there has been a change of circumstances, for example a reduction in income, retirement, redundancy, disability or perhaps their other expenses may have increased (such as having a new family to support). Bear in mind that the Court can also consider the case afresh, but it is important that the balance achieved by the original order is continued and therefore the Court will consider the totality of the original financial order.

4. The timing of the application can be crucial. If a variation of maintenance application is made too soon after the original order (especially if the original financial settlement was by consent) it may be difficult to persuade the Court that the order should be varied unless there has been a fundamental and unexpected change of circumstances.

5. The Court has a very wide discretion so, as with any court application, it is usually difficult to predict with any certainty whether the application will be successful.

6. If you are seeking a variation you will need to attend a MIAM (Mediation Information and Assessment Meeting) before making an application to the Court.

7. The court procedure for a variation of maintenance application is very similar to the financial remedy proceedings on divorce. You will both be required to produce full and frank disclosure of your financial position with supporting documentation. If the application cannot be resolved through negotiations (either through solicitors, directly or through mediation) there will be a court hearing to determine the application.

Child Maintenance

If you pay child maintenance under the CMS or CSA Regimes this will not be varied by the Court and can only be varied on an application for a new assessment to the CMS. Even where the Court has made a child maintenance order, you should be aware that after the order has been in place for 12 months it is open to either the payer or the recipient to apply to the CMS for an assessment which will then override the court order.

Tisshaws has the expertise and experience as family law specialists to advise about variation applications which can often raise complex and technical issues. We offer a fixed fee meeting to give you guidance and help you decide on the process.

For further information or to set up an appointment please telephone 01444 472700