Child's DLA counted as income in Divorce

CurlySue2017

tightauldgit said:

Divorcedwith3 said:

Even if he is paying the bills himself it’s irrelevant- their is a second adult in the house that is working and it is assumed that they contribute to bills. 

I know that he is saying he pays the bills because it was in his first discovery- he is claiming he pays all the rent, the electricity, all the household costs and failed to mention she was living there. 

On a form E it actually asks if you intend to cohabitate because if you do if has an effect on your figures. 

it's not necessarily assumed someone cohabiting will pay the bills - as part of the Form E process they will have to disclose their bank statements showing their incomings and outgoings, I presume they've done that? So you should be able to see the true financial picture and so should the court. You should also request a disclosure of the financials of the new partner if they are cohabiting. But if they aren't married then their finances remain largely separate and the court won't take too much if it into account. The relationship could end tomorrow. 

I appreciate that these things get emotional and contentious but it's better from your point of view not to let that get in the way and just focus on the facts and figures. 

I have to admit to being confused by your comments around the CMS - the kids from the new relationship are not his if I read your posts right. Therefore he has no financial obligation to support them and they shouldn't be considered by the CMS as his dependent children. Equally I'm confused that you say he's reduced his CMS payments - since he can't do that. Only CMS can change those based on what he has submitted to them. Your DLA money is absolutely 100% irrelevant to any CMS payments.

Equally saying 'I don't consider the children his' while also expecting him to pay their maintenance and saying you are looking after "his kids" doesn't sound too good. 

There's a lot of back and forth and arguments both ways in the financial process but most of it is white noise for the court. Your interests are best served by cutting through the noise and making your case succinctly to the court and based on evidence and data. 

The financial process is there to divvy up marital assets not to punish one or the other party or to settle scores. Based on 50% of the assets is this sufficient to set you up in your life and get you housed etc? Bear in mind you are entitled to a share of pensions etc. If your needs are greater (which it sounds like they may well be) then you need to make a case for a bigger share than 50% - so for example if he's not having contact with the kids then you need accommodation suitable for all of you while he only needs accommodation for himself, it limits your ability to work and earn, etc.

The courts are reasonably good at cutting through the BS but at the end of it you will probably both feel like you haven't got what you want, which probably means it was a reasonable compromise.  

This.  Unless he has legally adopted those children they do not come into the calculation between the two of you - this is not up to him to decide, the CMS is clear on this

elsien

See OPs previous post where the CMS appears to have decided otherwise. 

CurlySue2017

Divorcedwith3 said:

I appreciate all the comments and thank you all for taking time to reply. The thing that upsets me most (I do realise that my feelings influence me) is not the actual money but the principle of him not wanting to see or provide for his kids. 

I completely agree with your feelings on this, any father should want to be there for his kids no matter what

Divorcedwith3 said:

I did phone the CMS and unfortunately it can be done- child maintenance can be reduced if the paying party can prove they have other children they support- I asked how this was done and was told mother sent in child benefit letters that showed she lived there and they were a family unit so he is assumed to be financially supporting the kids. I explained that I knew that she was already receiving child maintenance from father of children and they said that was irrelevant 

I would advise you to double check this - the CMS can be quite honestly awful - one advisor tells you one thing and another tells you something different and this doesn't sound right to me

Divorcedwith3

CurleySue I know that the CMS don’t take other things into consideration but I was asking more in reference to financial disclosure/ ancillary relief. My understanding is that all a court asks is that if CMS is involved and non-resident parent paying. 

I was asking in reference to the Form E and financial disclosure- he is saying that he is paying all the household bills but he has another adult there and my understanding is that if they are in a serious relationship and living together that although her incomings aren’t considered it is assumed that she is paying half the household bills because they are a family unit 

tightauldgit

Divorcedwith3 said:

I did phone the CMS and unfortunately it can be done- child maintenance can be reduced if the paying party can prove they have other children they support- I asked how this was done and was told mother sent in child benefit letters that showed she lived there and they were a family unit so he is assumed to be financially supporting the kids. I explained that I knew that she was already receiving child maintenance from father of children and they said that was irrelevant 

Maybe someone else with more experience can comment on this - it might get more traction in the Child Support section of the Family forums - but I would be pushing back on this strongly. I'd be asking them for the specific wording of the law that they are referring to because from what I have read Child Maintenance is only reduced for children for which the NRP is required to pay child maintenance. And in my view, cohabiting with someone with kids doesn't cut it. If he left that relationship tomorrow he wouldn't be expected to pay for those kids and he has no obligation to support them currently. That he chooses to do so now is his choice, but it shouldn't be affecting the support his actual kids receive. To me that's made more obvious by the fact that the father of those kids will still be paying child maintenance at the same rate to the partner. 

Do you have something in writing from CMS explaining the decision? If not it might be worth lodging a formal appeal and pushing it as far as you can. If nothing else it will force them to make a declaration that they are a family and their finances are comingling and provide evidence of who is paying for what and what he is actually paying for.  

If you do get the above then I think you would have a strong grounding to argue that the couple's finances are now being comingled and that her declaring all her income and outgoings as part of the Form E is a necessity to get a true picture of the couple's finances. As you say it's difficult to argue you are a family to CMS and then two separate people to the court. It might well also shame him a bit in court if he says he's paying for piano lessons, new bikes and foreign holidays for his new partner's kids but won't even provide enough for his own kids to eat.

As someone who has been through the process though I never managed to get the court to force my ex to provide financial declaration for her new partner - even thought it was part of the form and requested several times they just ignored it. I'm not sure if it would have been forced had we proceeded to a final hearing but we settled after the second hearing. It just seemed to one of those things that wasn't seen as that important. But a lot of it also comes down to what the two of you are saying your needs are and what these are based on.  

The court hearings might proceed a bit differently than you how imagine - it's not really a detailed negotiation of every point on the Form E more a discussion of any key points of contention and general direction and principles provided by the judge. It may get a bit more line by line in a final hearing but unless you are talking about a lot of money it really doesn't make sense to push these things all the way to final hearing in my opinion. 

Has he made you any kind of settlement offer at all or has it just been complete stonewalling? At the end of the day judges don't take kindly to any party acting like a numpty and if one comes across as being unreasonable while the other one is being reasonable that acts in your favour.   

Divorcedwith3

Completely stonewalling. Did give a disclosure early on but my Solictor has been asking for 7 months for a new one as circumstances have changed since last one . I didn’t want to go down the court route hence he was given lots of time but he is refusing to communicate with my Solictor and his solicitor is MIA so they have either parted ways or he is incompetent as surely a solicitor wouldn’t advise ignoring the other party. Doesn’t make sense to me because court proceedings are going to cost him money and this is the latest in a long line of obstructions ( providing incomplete paperwork, ‘accidentally forgetting’ to include pension info and earnings. Denying his partner lived with him and then going to CMS stating she does to get Child support reduced. 

He is either v stupid or v stubborn but I do hope this conduct is taken into consideration esp as it is now going to cost me money to go to court to resolve it (I get legal aid but sure I have to repay it at some stage). I’m not impressed at all by his behaviour (hence the probably over emotional undertone of my messages) but the threat to the children’s DLA was the last straw. 

tightauldgit

Divorcedwith3 said:

CurleySue I know that the CMS don’t take other things into consideration but I was asking more in reference to financial disclosure/ ancillary relief. My understanding is that all a court asks is that if CMS is involved and non-resident parent paying. 

I was asking in reference to the Form E and financial disclosure- he is saying that he is paying all the household bills but he has another adult there and my understanding is that if they are in a serious relationship and living together that although her incomings aren’t considered it is assumed that she is paying half the household bills because they are a family unit 

In regards the Form E he has to provide bank statements supporting what he is claiming. If he can show that his bank statements have debits for the full amount of the bills and no credits from his partner that look like she is contributing to the bills then the court will probably have to accept what he says. You can of course try to push back on this but I don't think it would be a given that they would assume she is paying half the bills but it would be a good reason to insist on financial disclosures from new partner. 

What I am kind of not getting to be honest is the big picture of where this is going - are you arguing that he has the capability to be contributing more to the kids but chooses not to? If so then I'm not sure how much traction that can have in a divorce court as child maintenance is a matter for the CMS. Are you arguing for spousal maintenance? I really don't have much knowledge in that area other that it being reasonably rare nowadays. Are you arguing for a bigger split of the marital assets pot based on your needs? in which case i don't think things like the DLA are going to be much of a big factor.

One thing it's very useful to do is to have a lot of clarity on what it is you want and why you want it/why it's justified. Judges like that. Try to avoid framing things in terms of what's 'fair' or comparing one party vs the other. You might already have done all this but rather than say arguing 'it's not fair that I have to look after three disabled kids on my own while he can go out to work and contribute to a pension' just try to set things out in terms of facts 'I have sole custody of three disabled children as the father is refusing contact. As a result I have a need for a 4 bedroom house, a reliable spacious car, XXX equipment, YYY costs for ZZZ etc etc. The cost of this is £AAA per month. Due to my childcare commitments it is difficult to be able to work a full time job and my income is limited to £BBB and I receive only £CCC in benefits and father contributes £DDD in maintenance. As such, without ongoing spousal maintenance contributions of £EEE per month there would be significant negative impact on my ability to provide for myself and our children. This also limits by ability to contribute to a pension or to plan for retirement while my ex-spouse is able to work and contribute to his pension. In order to plan more effectively for my retirement I would plan to invest a lump sum of £XXX in an XYZ Investment, this amount to be retained from the marital assets. 

And obviously you want to layer on as much to the top line of costs as you can and let a judge kick out what they think is milking it. 
      

tightauldgit

CurlySue2017 said:

Divorcedwith3 said:

I appreciate all the comments and thank you all for taking time to reply. The thing that upsets me most (I do realise that my feelings influence me) is not the actual money but the principle of him not wanting to see or provide for his kids. 

I completely agree with your feelings on this, any father should want to be there for his kids no matter what

Divorcedwith3 said:

I did phone the CMS and unfortunately it can be done- child maintenance can be reduced if the paying party can prove they have other children they support- I asked how this was done and was told mother sent in child benefit letters that showed she lived there and they were a family unit so he is assumed to be financially supporting the kids. I explained that I knew that she was already receiving child maintenance from father of children and they said that was irrelevant 

I would advise you to double check this - the CMS can be quite honestly awful - one advisor tells you one thing and another tells you something different and this doesn't sound right to me

Very much this on the last comment there! CMS seem to make the rules up as they go along and can decide two different things on two different days. I think some of this is down to them giving some level of discretion to the people making the judgements but they also don't seem to provide proper justifications for their decisions or reference to specific regulations.

As an NRP myself I see their decisions as a bit like a one arm bandit - you pull the lever and see what you get. If it's three cherries then you go along with it, but if you don't like it you appeal and see what you get next time. I've been on both ends of decisions in the past - sometimes paying more than i felt I should, sometimes probably getting away with paying less - at the moment I think I'm probably slightly overpaying but since it's only a few pounds a week that's at issue I have just let it lie because there's always the risk that you flag up something else and end up worse off. 

At no point have I ever felt that there is any consistent rhyme or reason to their decisions. It probably works fine for the 80% (?) of cases where someone is FT employed, PAYE, and their dependent children are clear cut but for the rest of the cases it seems to be a lottery