|An excerpt from Lawpack's Separation & DIY Divorce Kit.|
A significant number of divorce cases don't clearly 'end' with the decree absolute. Even when a couple have agreed on the level of maintenance payments beforehand, one partner may still go back to the divorce court afterwards and ask for a higher level of maintenance payments, or for maintenance payments to continue for a longer time if the other ex-partner's circumstances change.
Similarly, one partner may attempt to reduce the maintenance payments they make, due to the effects of inflation, retirement, redundancy or a change in their circumstances, such as a job loss, significant drop in income or new and special needs that may arise. Any significant increase or decrease in income by either spouse may cause the divorce court to modify the periodical payments order.
If the payer stops the maintenance payments, this may be for a valid reason, such as job loss. But the payer should never simply stop maintenance payments; instead, they should ask the divorce court to vary the maintenance order immediately.
When maintenance payments stop without being approved by the divorce court, you can register the outstanding periodical payments order at a Magistrates' Court. This compels your ex- to pay future maintenance payments through the court, who will then enforce any missed maintenance payments or make an application to enforce payment of the arrears through a divorce County Court.
Expert legal advice should be taken as to which application is appropriate since the law in this area can be complex.
Alternatively, the Department for Work and Pensions may take up your case and help enforce the collection of any maintenance payments outstanding.
Do note that even when spouses reach an agreement as to the level of maintenance payments for the children, it will still be possible for either parent to apply to the Child Support Agency (CSA) for an assessment of the child support that the non-resident parent will have to pay from then on.
If the court has made an order for child maintenance which includes a condition that the child maintenance order will fall down if an application is made to the CSA after the child maintenance order is a year old, there is nothing the other spouse can do to prevent it.
In Scotland, if you have either a court decree or separation agreement for maintenance (called periodical allowance), it does not need to be registered at a court. To enforce the court decree or separation agreement, you should instruct a Sheriff Officer (usually done through a solicitor).
There are various powers available to the Sheriff Officer which include arrestment of wages, where the sum outstanding is taken from the non-paying spouse’s wages or salary on a weekly or monthly basis and paid either directly to the dependent spouse.
Or a current maintenance arrestment, where the maintenance payments are deducted at source from the non-paying spouse’s employers and paid directly to the dependent spouse.
All maintenance orders stop automatically when the receiving party remarries.
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Published on: October 25, 2010