COVID-19 and maintenance payments « McAlister Family Law

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COVID-19 and maintenance payments

Nicola Wilburn-Shaw

06.04.2020

Child Maintenance via the Child Maintenance Service (CMS) 

If you are paying child maintenance via the CMS and have a change in circumstances you must get in contact with them immediately. Expect to provide evidence of your income being impacted and speak to the other parent (the payment received) in advance. See what you can work out between so as not to leave either of you unable to make ends meet. Failure to take the appropriate steps are likely to render you subject to an enforcement action which can include payment of arrears. If you are the receiving payment of Child Maintenance and your ex fails to take the steps above, you will need to contact the CMS immediately yourself to commence the enforcement procedure.
 

Maintenance via a Court Order

If you are making payments, whether or child, via a court order, and you do not meet these payments then you will be in breach of that order. Unless you can agree between you a differing amount for the time being, you are at risk of being held in contempt of court and taken back to court for enforcement. The courts remain “open for business” and hearings are being conducted either by telephone or video link. If you fail to prove to the court that you cannot meet the payments and/or you have unreasonably caused an application to go back to court to be made, you may also find yourself hit with a costs order to meet the payments of your former spouse of co-parent.  
 

Voluntary Maintenance

If you have been making payments to your former spouse on a voluntary basis and there is no court order in place, the situation is slightly different. Failure to make those payments does not render you potential to a finding of being held in contempt of court. It does not, though, provide you with a free reign to withdraw those payments unfairly. You should, in the first instance, speak to your former spouse and try to come up with an amount that works for you both. Simply pulling the plug, is not advisable. At the very least, you should offer complete transparency and provide some evidence of the loss of or reduced income. If you cannot agree, and/or you fail to take reasonable steps (such as suggested) it is open to your former spouse to issue an application for a Maintenance Pending Suit and, if successful, you may also be hit with a costs order (as above) to pay their legal costs for having to do so.
 
Finally, the Covid-19 outbreak is proving unpredictable and we do not know at this time what the immediate, and indeed long-term, future holds for us. That said, the pandemic should not be utilised as a means to seek an unfair financial (or other) advantage over a former spouse or co-parent and the courts have made clear that they will take an extremely unfavourable view upon any who seek to do this.
 
As with most situations in family law, communication will be key. We are in this for the long haul so my advice here is be sensible, be fair and above all, try to be compassionate to each other. And, if all else fails, be sure to take legal advice.

 

If you are affected by any of the issues outlined above, please get in touch today.  We are here to help you. 

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