If you have divorced and receive maintenance payments do you know what to do if these suddenly stop? How would you claim arrears on these payments? We give the lowdown on what to do in this difficult and stressful situation.
In financial remedy proceedings, the Court has powers to require one spouse to make maintenance payments to the other. This can be either for themselves or for the benefit of children. Many former spouses who are in receipt of such payments are unsure what to do in the event their former spouse stops paying them.
In respect of maintenance payments for the benefit of the children of the family, if the Order has been in existence for over one year it is open to either party to make an application to the Child Maintenance Service (The CMS) for a formal assessment to be carried out at which point that assessment will overtake the Order.
Unless and until such assessment is carried out, however, the Order remains in force and arrears accumulated prior to the CMS will still be enforceable through the Family Court.
The most important factor to take into account when considering an application to the Court to enforce payment of the arrears, either spousal or child maintenance, is that without prior permission from the Court, the Court will only allow you to enforce 12 months of arrears and the Court can remit, i.e. cancel arrears which are over 12 months old.
It will be entirely at the discretion of the Judge dealing with the application as to whether aged arrears should be paid or cancelled and the Court will have consideration to a number of factors such as the amount of arrears, over what period they have been accrued, the reasons for the delay in enforcing the arrears and the financial position of the debtor.
It is, therefore, important to consider enforcement options immediately in the event that your spouse stops making payments to you in accordance with a Court Order.
The Family Court has a range of powers available to it to enforce the payment of maintenance arrears. These include but not limited to an attachment of earnings order, placing a charge over the debtor’s property, or in most serious cases a Judgment Summons can be applied for, which if granted gives the Court power to imprison a debtor for up to 6 weeks. The Court will only imprison the debtor as a last resort but it can be a useful tool to put pressure on the debtor to pay the arrears.
The issue of which is the most appropriate remedy to use will vary from case to case and will depend on factors such as the amount of the arrears, the ability of the debtor to pay the arrears, whether the debtor has any property or whether the debtor is unemployed, self-employed or employed.
If you are divorced and are struggling to receive maintenance payments from your former spouse, Pinney Talfourd are here to help. We have an experienced and dedicated team of specialist family lawyers based in our offices across Essex and London.
We have evening and weekend appointments available and offer a free initial 30-minute consultation for all new family law enquiries. You can book your free initial family consultation using our online booking form or by calling your local office. This half-hour appointment will allow you to explain the situation with an expert lawyer and discuss the best steps to minimise stress and delays.
The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.