first contact with CMS

[Dirge]

Hi everyone, I've recently fallen into the worm hole of splitting up with me wife, so got several questions, which I'll post in separate threads to try to keep things concise.
I moved out of the family home back in January. My wife had made it clear just how ruthless, amoral and despicable she could be to get what she wanted. I had to leave to protect myself from the very real possibility of false accusations. I had the sense to get her to agree to an informal child access arrangement before I moved out but naively I did not realise the importance of 50/50 time. My wife was clearly more clued up on the legalities so I have my two young girls 3 nights a week. Don't get me wrong, I would love to have my girls full time if the wife had agreed, but disappointingly, my solicitor, despite discussing the issue with him, did not advise me to push for 50/50 time with my daughters. The poor performance of my solicitor is going to be the subject of other threads.

Anyway, I have been paying the mortgage on the family home, along with other expenses, but despite the fact my wife earns about the same as me, she has now got the CMS onto me. Got the first contact letter from them on Friday, giving me 14 days to contact them. Not done that yet, but anyone got any advice before I speak to them?
Eg. wife has elected for direct pay service, so do I have to give them my bank details? Do I have to declare any income from savings etc. or is the payment they dictate purely derived from my PAYE earnings, as on last year's hmrc figures?
Having read one or two of the horror stories about CMS on this forum already, I don't want to dig myself into any holes due to my ignorance.

 

[Ash]

Direct pay just means you pay directly to her bank account by standing order each month. Either at an agreed amount you agree between you, or at the CMS assessment amount. The CMS will calculate the payment from HMRC tax details - ie based on taxable gross income. Savings under a certain amount aren't counted but it's something to bear in mind if you were thinking of selling a second property eg. Best to keep savings in property.

Ok so the only thing you are legally obliged to pay is the CMS. You don't have to pay the mortgage and bills as well. So if for example the CMS figure is £1,000. And you're currently paying £1,000 a month mortgage and about £300 worth of bills, then you just pay £1,000 into her bank account every month with a reference marked "Child Maintenance". Make sure it is marked as Child Maintenance. Then write to her and say as you're now paying CM you can no longer afford the mortgage and bills.

Having said that - is your name still on the mortgage? Because if she then doesn't pay it they might come after you. Likewise with the bill companies. So you need to write to the bill companies and inform them you no longer live at the address and ask them to remove your name from the bills and add the name of your ex instead.

The mortgage isn't quite so simple. To get your name off the mortgage, she would have to buy you out or the house would have to be sold. You could suggest to her that the house is remortgaged interest only which will reduce the monthly amount.

You mentioned a solicitor and 3 days a week with the kids. Is that in a court order or just an agreement?

 

[Resolute]

The mortgage on a shared property can be an allowable expense. I was told by CMS on the phone this is the case if your ex maintains a 50% claim on the property.

When you speak to them keep a record of who you speak to and what is said. They are inefficient and liable to go back on what you are told. The date you choose for payments to be due can delay your liability for a while. Say the claim is Feb 6th, if you choose the 2nd of the month as your payment date, first payment is not due until april 2nd. If you choose the 10th, first payment would be march the 10th.

Is your 3 nights a week in an order? This would mean you are only liable for 4/7 of the total. CMS can act as an incentive to reduce your time with the kids if the arrangement is informal.

 

[Ash]

That's a new one on me. They didn't used to allow mortgage payments. It was simply based on gross income, not any outgoings.

 

[Resolute]

Here is a list of expenses. From conversations I have had, I do not think it is comprehensive:

How the Child Maintenance Service works out child maintenance

See how the Child Maintenance Service works out maintenance and the rates they use

www.gov.uk

 

[Ash]

So they would just reduce your earned income by the mortgage relief element then? And then do the calculation based on that?

 

[Resolute]

So they would just reduce your earned income by the mortgage relief element then? And then do the calculation based on that?

I am not totally clear on that bit, different operatives have given a different account. The one expense I have been allowed, travel, resulted in a bigger discount.

My experience has been they make it up as they go along. They have not been able to anticipate how things will be handled and decisions are a lottery. Challenge, challenge, challenge!

 

[Ash]

I've only heard of Dads being able to get allowances for travel before now.

 

[Resolute]

It was not easy to get the allowance I did secure. I had to push again and again, including conversations with various managers before I got answers on this stuff. If you do get an expense approved, the other side will likely do a mandatory reconsideration in response. It would not surprise me if many are overpaying out of ignorance, exhaustion, or fear of rocking the boat.

 

[Dirge]

Thanks for your replies: the 3 nights a week I have with the girls is not an order, just an agreement between me and the wife. She only agreed to Thursday eve to Sunday lunchtime because it suited her - free baby sitter, plus she wanted me out of the house and knew I wasn't going without access to my girls. I am in the process of applying for 50/50 CAO, and fully expecting a NMO when she finds out. I assumed that since I have the girls 3 days a week I would get a 3/7 reduction on the CMS payment, but from what you said, if it's not an order won't I get it?
Regarding the mortgage, from the info the CMS sent, if the paying parent, (ie. the dad), has a financial interest in the house, it will not be offset against the CMS payment. Travel costs for picking up the kids and dropping them off are also ignored if under £40 a month. I'm finding it hard to come to terms with the fact that CMS payment calculations do not take into account the wife's earnings and are based on my GROSS salary.

 

[Resolute]

Thanks for your replies: the 3 nights a week I have with the girls is not an order, just an agreement between me and the wife. She only agreed to Thursday eve to Sunday lunchtime because it suited her - free baby sitter, plus she wanted me out of the house and knew I wasn't going without access to my girls. I am in the process of applying for 50/50 CAO, and fully expecting a NMO when she finds out. I assumed that since I have the girls 3 days a week I would get a 3/7 reduction on the CMS payment, but from what you said, if it's not an order won't I get it?
Regarding the mortgage, from the info the CMS sent, if the paying parent, (ie. the dad), has a financial interest in the house, it will not be offset against the CMS payment. Travel costs for picking up the kids and dropping them off are also ignored if under £40 a month. I'm finding it hard to come to terms with the fact that CMS payment calculations do not take into account the wife's earnings and are based on my GROSS salary.

I would try registering the mortgage expense on the portal, here is the segment from above link:

"mortgage, loan or insurance payments for the home you used to share with the receiving parent - if the receiving parent and your child still live there"

If you won't go bust in the meantime, I think your first focus should be on getting your child arrangement formalised. First step could be to propose a consent order which reflects the agreement when you left the house. Was that agreement made in writing? 3/7 plus half of the school holidays would mean you are still liable for CMS. But, it can be an order to live with both parents despite not being 50/50.

 

[Dirge]

Thanks for the advice Resolute. I'll have to set up an online account with CMS and try to register the mortgage on the portal. I'm still a bit confused as on page 19 special expenses in the "about the child maintenance service" booklet I was sent from CMS it does say mortgages can be claimed as a special expense, as in the advice on the www.gov.uk website. However, the CMS booklet then states " and you must have no legal or equitable interest in it". (ie. the house that the mortgage is against).
The agreement must have been verbal at the time, I can't see it in any email or text she sent, but I've made reference to it in several emails to the wife since. She has been clever - virtually every e-mail she has sent has had some derogatory comment in it, intended to make me look bad. My solicitor is supposed to be handling my application to court for child custody. He referred to child arrangement order, but has not mentioned a consent order - are they the same? must say my solicitor hasn't been particularly helpful and my head is spinning at the moment.

 

[Resolute]

Thanks for the advice Resolute. I'll have to set up an online account with CMS and try to register the mortgage on the portal. I'm still a bit confused as on page 19 special expenses in the "about the child maintenance service" booklet I was sent from CMS it does say mortgages can be claimed as a special expense, as in the advice on the www.gov.uk website. However, the CMS booklet then states " and you must have no legal or equitable interest in it". (ie. the house that the mortgage is against).
The agreement must have been verbal at the time, I can't see it in any email or text she sent, but I've made reference to it in several emails to the wife since. She has been clever - virtually every e-mail she has sent has had some derogatory comment in it, intended to make me look bad. My solicitor is supposed to be handling my application to court for child custody. He referred to child arrangement order, but has not mentioned a consent order - are they the same? must say my solicitor hasn't been particularly helpful and my head is spinning at the moment.

A consent order is a CAO, it just means the order is agreed without the need for contested proceedings. If you have agreement on an arrangement, you can have that written up by solicitors and sealed by the court. There is every chance the ex will refuse. If she does, you know an application is necessary.

If she engages in the process and agreement is found, you don't have to go through the NMO you are anticipating. Banking the deal you have agreement upon might be a better result than 2 years of allegations and acrimony.

The derogatory comments are also designed to try and get you wound up. If you let yourself become frustrated, you give them the ammo they need. Keep what you write in response child-focussed and try not to be drawn into arguments. The most you need to do is mention that her account is denied if she claims something outrageous.

In my experience there has nearly always been a hidden agenda behind emails that seem outrageous and nonsensical. It is not always easy to identify the bit they will be using to support the case they plan on
making. Your solicitor might be a good one. There are solicitors that treat this as an assembly line and happily line up the parts in a way that builds a big bill.

Having said that, I am only giving some thoughts for you to consider. I am not saying you should ignore legal advice.

You have to assess the risks. If you think she will launch an all out attack in response to your attempt to formalise. Beware that she may withhold the children as well as making allegations.

 

[Ash]

Thanks for your replies: the 3 nights a week I have with the girls is not an order, just an agreement between me and the wife. She only agreed to Thursday eve to Sunday lunchtime because it suited her - free baby sitter, plus she wanted me out of the house and knew I wasn't going without access to my girls. I am in the process of applying for 50/50 CAO, and fully expecting a NMO when she finds out. I assumed that since I have the girls 3 days a week I would get a 3/7 reduction on the CMS payment, but from what you said, if it's not an order won't I get it?
Regarding the mortgage, from the info the CMS sent, if the paying parent, (ie. the dad), has a financial interest in the house, it will not be offset against the CMS payment. Travel costs for picking up the kids and dropping them off are also ignored if under £40 a month. I'm finding it hard to come to terms with the fact that CMS payment calculations do not take into account the wife's earnings and are based on my GROSS salary.

Have you actually sent the C100 off yet? You can do that yourself with help on here - you don't need a solicitor for that. Solicitors run up a lot of bills and achieve very little. Unless you think a consent order can be achieved by negotiation. I would get on with that application asap.

Your ex can change or reduce your time with your girls at any time if it's not in a court order. Ex's sometimes use the time as leverage to get the money they want when it comes to the divorce. So ideally you want the CAO in place before the divorce financials are done.

I'm finding it hard to come to terms with the fact that CMS payment calculations do not take into account the wife's earnings and are based on my GROSS salary.

It's shocking isn't it? CMS is outrageous. It should be means tested. Your ex could be a millionaire and you'd still have to pay based on your gross income. With 50/50 shared care there is no cms to pay - but that's one reason your ex will no doubt now resist strongly a 50/50 order.

If she is open to the idea of a consent order for the current 3 nights a week, that could be a bird in the hand - it's not a bad order - 6 nights a fortnight, which is near 50/50. You'd still be liable for CMS though. But it's weighing that up against a year in court and high legal fees. You'd need a barrister to have a good chance of getting the best order via the courts.

 

[Ash]

Good that you have a record, in your own texts, of what the current arrangements are. Evidence can't be seen till right near the end of a CAO case and up to then she can say absolutely anything. But you can make it clear early on, that you have evidence that 3 nights a week was agreed. The trouble is, once it's not agreed any more, it's no longer an agreement.

Thursday night to Sunday lunch time every week wouldn't be a normal order either. Normally it's a full week-end every other week-end, with each parent. But if she's happy for you to have every week-end then it's a good schedule. Until you want to go away for a week-end for example, and then having to be back by Sunday lunch time would be very tying.

A 50/50 schedule would be something like

Every other week-end from school on Friday until school drop off on Monday (ie a 3 night week-end - good if you want to go away), plus two midweek nights each week. So that would either be Monday and Tuesday nights or Wednesday and Thursday nights each week. Assuming you had Wednesday and Thursday each week this would look like the following

Week 1 - Wednesday through to Monday morning drop off at school (the two midweek nights with the week-end tacked on - 5 nights)
Week 2 - Wednesday through to Friday morning (2 nights).

That is a 5-5-2-2 schedule.

 

[Dirge]

Thanks guys. The wife is ignoring my solicitors letters and is not co operating with anything. She is doing her best to drag out proceedings in the hope of getting a share in a possible inheritance.

Is your 3 nights a week in an order? This would mean you are only liable for 4/7 of the total. CMS can act as an incentive to reduce your time with the kids if the arrangement is informal.

From what you posted earlier, I gather informal child arrangements won't be recognised by CMS. My wife must know this, she doesn't have a solicitor, but where ever she is getting advice from, she seems to be several steps ahead of me. She won't agree to a formal agreement.

Thursday night to Sunday lunch time every week wouldn't be a normal order either. Normally it's a full week-end every other week-end, with each parent. But if she's happy for you to have every week-end then it's a good schedule.

Yes, I agree it's not a bad schedule. It was the Wife that suggested it, because it fitted with her weekend "activities". The irony is, in a later email she sent, she referred to the schedule as being dictated by me "as was everything else in our marriage". Just one example of how she is trying to create a false narrative of an abusive relationship.
I haven't sent a C100, my solicitor was supposed to be sorting the CAO. He did tell me I could do it myself, but I thought if he did it, it would be quicker. At the time, he said he saw no reason why I wouldn't get 50/50 custody, but he is aware of what my wife is like. He also estimated the time frame for CAO as 3 to 7 months, depending on whether a section 7 was required. As it turns out he is being evasive and failed to answer my request for an update on it in the email he sent me last Friday. I have considered changing solicitors, that was going to be a question for another thread.

 

[Ash]

If your solicitor was supposed to be sorting the CAO then it wasn't quicker because it hasn't been done.

It's an application. Anyone can put an application in - you don't need a lawyer until the first hearing, which could be at least 3 to 4 months. I'd get the ball rolling. Have you tried mediation first? Before you can apply to court you need to have had a MIAM (first mediation appointment on your own) and attempted mediation. What that means is the mediator then invites your ex to mediation. It's common for an ex to decline to go to mediation and then you get signed off. That sign off form is what needs to go with the C100.

Have a look here on completing the C100. Also the second link has sample application wording.

How to complete the C100 Form

We thought a guide to completing the form could be useful. This is the C100 form for applying for a Child Arrangements Order, Specific Issues Order or Prohibited Steps Order. C100 form on .Gov website If you scroll down the page you will see...

www.dadswithkids.co.uk

Sample wording for C100 application

Attached are two versions of sample wording for section 5b of the C100 form. The sample wording assumes it's for a Child Arrangements Application. One version is more of a straightforward application. The other version is more for if...

www.dadswithkids.co.uk

CMS will go by whatever your ex tells them. If she says you have no overnights at all they will assess you on that. If you tell them that's not true you need to be able to prove it - and you can't prove it without a court order.

The tricky thing at the moment is - you're getting good time. Do you think, if you applied to court, she's the type who would stop you seeing the kids? If so then the application wording needs doing carefully, as she will get a copy of it - so you make it sound like you are keen to reach agreement but just want a schedule that gives good stability and continuity ongoing for the kids.

It would be a good idea to have the C100 completed before you start mediation - so you can send it off quickly if you get signed off mediation. Some ex's guess that you;ll apply to court as soon as you start mediation and could wap an application in first, then you can be on a back foot.

If you want the solicitor to do the application though, it might be simpler.

 

[Dirge]

Thanks Ash, I appreciate the time you're putting in.
I tried mediation back in December for financial agreement. wife refused to engage. My solicitor showed me a draft C100, at the end of April, he was going to submit. on that he answered NO to having tried mediation. This was on the grounds the first mediation attempt was over 4 months ago. He did not say I needed to try again, but he answered YES to any reason why mediation had not been attempted.
I requested an update from my solicitor regarding C100 last week, amongst other questions. His reply completely ignored the C100 issue, so I don't know if that's actually been submitted.
WIfe absolutely would stop me seeing the kids if it suited her. However, at the moment, it's convenient for her to have me babysit them so she can have the weekends to herself.
I'll chase up my solicitor again tomorrow, and if the C100 hasn't gone through yet I'll do it myself.

Anyone got any idea how long after applying for C100 should I be hearing from the courts/CAFFCASS?

 

[capa]

Regarding the mortgage, from the info the CMS sent, if the paying parent, (ie. the dad), has a financial interest in the house, it will not be offset against the CMS payment.

sorry to butt in on this thread, this is confusing, for me house is in my name, ex and child live there yet says she is going to pursue CMS and what does it mean financial interest. the mortgage is in my sole name only she has never contributed or been on the mortgage

 

[Dirge]

Hi Capa, I'm new to this forum and just starting the CMS journey too. I believe that "financial interest" means something along the lines of - you own or part own the house/property and if it were to be sold you would get all or part of the sale funds. From what I've read on the information sent from CMS, if you own the house, and are paying the mortgage, even if you no longer live there, but your ex and child still do, then CMS will not take the mortgage payments into account when deciding what maintenance you have to pay your ex. IE. they won't reduce what you have to pay. Sucks, doesn't it? from what I can see, the only way of reducing or avoiding maintenance is to pack your job in, reach a financial settlement whereby the ex gets the house, or you get 50/50 custody of the child.