Info & Advice

My ex is seeking 50/50 custody to avoid paying child maintenance

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It is usually in a child’s best interests to spend time with both parents, but can shared care mean that child maintenance stops? This article finds out more.

Most separating couples agree on the amount of time children spend with the other parent and how much child maintenance is payable. Some parents also use the Child Maintenance Service (CMS) as a guide when making agreements between themselves.

How does the CMS take shared care into account when making a child maintenance calculation?

The CMS takes shared care into account in different ways depending on the child maintenance rate they pay. This is the case whether the shared care agreement is formal, informal, or set out in a court order. The amount of child maintenance payable may therefore be reduced by the number of shared care nights the other parent has.

Basic, Basic Plus or Reduced rate child maintenance

If you or your ex are paying child maintenance under any of the above rates, the amount payable is divided between the number of qualifying children. Shared care is then taken into consideration, based on the number of nights of shared care for each child. The amount of child maintenance is then reduced as follows (figures correct at the time of writing):

  • 52 to 103 nights per year, a reduction of 1/7th applies
  • 104 to 155 nights per year, a reduction of 2/7th applies
  • 156 to 174 nights per year, a reduction of 3/7th applies
  • 175 nights or more per year, a reduction of 50% applies plus an additional £7 a week reduction for each child in this band. This means that a paying parent will always pay at least £7 a week per child after shared care has been taken into account. Even allowing for shared care, the paying parent’s total weekly payment cannot fall below this amount.

For completely equally shared time between parents, no child maintenance is payable by either party to the other.

Flat Rate child maintenance

If child maintenance is set at the flat rate of £7 per week because the paying parent is in receipt of eligible benefits, allowance, or other entitlements, then shared care for 52 nights or more per year will reduce child maintenance to zero. If child maintenance is set at the flat rate because the paying parent’s income is £100 per week or less, the CMS does not take shared care into account at all, and maintenance will also be zero.

Will 50/50 shared care mean that child maintenance is stopped?

If shared care happens in one of the ways set out above, then this can affect the payment of child maintenance to the receiving party. Under child maintenance rules, if both parents equally share the care of their children, neither parent will pay child maintenance to the other parent.

A separate issue is one of spousal maintenance and is distinct from that of child maintenance. A spouse can ask for financial support for themselves, both during the divorce proceedings, known as maintenance pending suit which is paid for the duration of the proceedings, or afterwards, and this is the more permanent spousal maintenance. If finances have been resolved, but a clean break order has not been made, then an ex-spouse may still be able to apply for spousal maintenance after divorce proceedings have been concluded. Although they are likely to have to prove to the court that their financial circumstances have changed significantly to warrant spousal maintenance becoming payable, such as losing their job, or suffering from long term ill health or sickness.

If spousal maintenance is being paid as per court order, it will continue to be paid, regardless of whether the care of the children is shared equally. However, child maintenance will not be payable.

Can my ex avoid paying child maintenance by having 50/50 shared care?

In the absence of an agreement between a couple, shared care can only happen by court order. There is nothing to prevent one party from applying for a Child Arrangements Order to address the issue, but even where the court makes an order, it may not necessarily be for totally equal care. In this instance, child maintenance will be payable in the same way as set out above and, depend on the number of nights the paying parent has the children staying overnight with them.

It is important to note that shared care does not mean equal time.  This is because the primary aim of a shared care arrangement is that each parent agrees they are equally involved and important in the lives of their children.

Why should I pay child maintenance when we have equal care of the children?

Obviously, since a year has 365 nights, there can never be complete equality of time. Historically, there have been some cases of children being denied contact with one parent just so the other could claim to be the resident parent. And a recent child maintenance tribunal case held that the precise number of nights the child spends with each parent would not by itself determine the question of a maintenance liability.

The tribunal’s decision makes it clear that where the day to day care was provided by a parent to no lesser extent, there would be no child maintenance payable. However, despite this ruling, the CMS remains an organisation bound in complexity, and a service that is extremely user unfriendly. If you find that your claims of 50/50 shared care are not being listened to, then it may be time to take specialist legal advice regarding your options.

Problems with the CMS

If you have received a poor service from the CMS, for example, delays, substandard communication, or administrative mistakes, you can make a formal complaint. The CMS must look into this, and, where possible, put things right. If there have been long delays or you have been given incorrect information, you may receive monetary compensation. Also, if the CMS has caused serious inconvenience, severe embarrassment or your health has suffered, you may be eligible for a “consolatory payment”. This is a small sum to compensate for your experiences. Although many people are frustrated when claiming child maintenance payments, this in itself is not sufficient to receive a consolatory payment. There is also no legal right to this payment, which is purely discretionary.

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