Spousal maintenence variation - can she do this?!

Firstly for some background. My husband pays CM and SM to his ex after they divorced approx 3 years ago. No problem with the CM however we were thinking about asking for a downward variation of the SM some months ago as my husband was left with very little disposable income every month and was extirely reliant on his (discretionary) yearly bonus. His ex wife is also living with someone else (this was taken in to account in the consent order but the other person was paying a minimal sum as had only been there for a few months) for an extended period of time and has also had a child with this new man which means that she can no longer return to work even though my husbands children are now teenagers.

However, in Feb my husband got promoted (and the associated pay rise) so we decided not to pursue the request for downward variation of SM as he now has enough to live on reasonably on a monthly basis and his yearly bonuses are also likely to be more. Didnt want to be greedy.....

However, the ex wife has now sent a letter from her solicitor asking for his new salary details!! Can she request an increase in SM just because he has had a pay rise even though her needs have not changed? Does this mean that every time he gets a pay rise she can ask for more just because he has more? The SM he pays her is not a percentage of his salary but a set sum, so how is this fair?

Please help. I am so sick of this

What are the trigger points for ceasing SM, if your husband was aware that she had a new resident partner did he get six months co-hab as a trigger?

It does seem singularly unfair that the ex has reduced her earnings potential by having another child and your husband has to continue to support her because of her choices.

Obviously the CM should go up in line with his wages (and I imagine this is how she knows of the pay increase) but in these circs I would be interested to see if anyone knows of any judgements that are relevant.

Sorry I can't offer more help but I agree with you- I too would be sick of it!

Unfortuantely there are no trigger points for ceasing SM. It is a "until death of either party or remarriage of the recipient" order. They had been living together for 6months at the time of order so my husbands maintenece was reduced by a set amount on the basis of the new man would be expected to contribute that amount (as if he was a lodger). Clearly she has no intention of getting married.

However, like you say her choice to have a child with him now reduced her earning potential. Because of the pay rise however we decided not to go for a request to downward vary. However, I think its unfair for her to upward vary and wanted to know if she has any chance of doing this?

If its the CM that goes up then thats fine. At the moment my husband puts aside an extra amount for his kids each month which will help pay for university fees. Unfortunately if CM goes up he will use that instead to pay her which means it will go to supporting her and the new child and man as well as his kids. We wont be any more out of pocket though.

Although by the time the taxman takes his bite of the pay increase 20% of it (for two kids) would not amount to much so not sure thats worth her going to court for which is why I think she is after an increase in SM.

Hi,
Either party is at liberty to apply for a variation. However, your partner's ex would be taking a risk in doing so. The court is obliged to take a fresh look at all the circumstances, and her now having a baby with her new partner would indicate that she was now in a more settled relationship going forward,and the court should take this into consideration. Also, she would in all probability need to show a change in her circumstances for the worse, and not merely an increase in your partner's income. In addition to this, the costs of an application to vary can often outweigh any increase in maintenance, and she might actually get a reduction.

Having been there myself I wish you good luck.
Regards
jim

I don't know why, but I thought I had replied to this. Sometimes things go astray but I did give some thought to it.

You can't stop people applying for a variation.
This letter which you have had is not an application but a sort of fishing enquiry. It's designed to elicit information which will give them the chance to assess the chances of success. It is not inevitable that it will lead to an application if you reply. But if you do, it is like playing a card game with your hand on the table and all the other p­layer­s holding their cards close to their chest.

As a long standing payer of SM ( 27 years ) one thing you learn is that one of the few advantages you have is that the other side may be unaware of your financial situation and therefore, to use the card game analogy again, an application for variation is like you saying to your opponent that you will see his hand, and there is obviously a risk that he has a royal flush.

As a tactic I rely on inertia by paying up every month, regular as clockwork, hoping that the other side take it for granted, and that the possibility of variation does not cross their mind. I also live well below my income. If t he other side called in a private eye, she would find out that I live in a one bedroom flat and run a ten year old car. That's all I need really but it has a deeper purpose. Although I think it is wrong that I pay SM after such a lapse of time, I know the amount is not burdensome and there is a serious risk that I might have to pay more. So I keep mum, lie low and say nowt.

If you let the solicitors have the information they ask for, then you are giving them a lot of information without any concessions on their part.

Do you have to reply ? I'm not sure. I think there just might be a risk that if you don't give them the information they may assume you're hiding something and go ahead anyway. Then they might ask for costs on the basis that the application could have been avoided if you had coughed up in the first place.

As a general rule, you don't have to tell your ex about you r circumstances and neither does she have to tell you. My ex did not tell me she had a life interest in a fund of a quarter of a million pounds. However, since your sins will find you out, a social worker knew, she blabbed to a care worker and the care worker blabbed to me. So I had few qualms about not disclosing an inheritance. If I applied for a variation I would have to disclose it.

I had been wondering whether the answer might be, well, I am prepared in principle to complete a Form E, but only on condition that your partner's ex and her cohabitee do the same, and there is a simultaneous exchange of Form E's, If there is to be a disclosure then let it be bilateral and that you can review the whole situation and not part of it.

I started a thread entitled ' Good news for SM payers with cohabiting ex's ' which may give you another arrow in your quiver.

Sorry about the non-reply, I really thought I had or may not have transmitted.

LMM

Thanks all.

I think you are right and this is essentially a fishing expedition. When we were looking for a downward variation a few months ago we gave her all financial details (as salary had only increased marginally since divorce) and a full list of our outgoings (which showed my husband as being in the black by about £20 a month). We asked repeatedly for hers in return and she ignored the requests. She then promised to give it in a month and when the month was up said that she was not giving anything without a formal request to court. Clearly stalling for time.

We have told her that we will no longer be applying for a DECREASE (at this point) as due to my husbands pay rise and the fact that he is not now paying additional things for the kids (he was paying their pocket money and travel to school on top of CM and SM) he now has enough to live on. However she clearly thinks the increase is enough to warrant an INCREASE in SM which is why she is fishing. Either that or she just wants to know so she can prepare for any future request for a decrease.

As far as I am concerned I dont think we should tell her anything. I think we were stupid to tell her in the first place. As LMM said, its like playing cards with your hand on the table.

I think we should wait till the kids are 18 and then apply for SM reduction ­base­d on the fact that she has had a kids with new man, by then she will have been with him for 7 years or so and she is overhoused as will be living in a 4 bed house. My husband will have been paying SM for 10 years by that point so hopefully a judge will think he has paid his dues.

Trip,

I can well understand why you think your husband has ' done his time ' and ' served his sentence '.

You will be amazed how many people - not just family, not just friends - have said the same thing to me.

Unfortunately, my perception is that, as long as the recipient can show a need, and
that the payer can afford to contribute to it, then the SM will continue to be payable for as long as necessary without limit of time.

That's my problem and I will handle it. From your point of view, there seems to be
a hardening of judicial attitudes on the issue of cohabitation. It will not be regarded as a reason for ending SM altogether and I personally think this is right.

But in the case of Grey v Grey ( see my post about good news for maintenance payers with cohabiting ex's ) the judge at first instance ignored the cohabitation altogether.

The Court of Appeal said that the true test was not, as previously believed, what the cohabitant was contributing towards household costs, but what (s)he OUGHT to
contribute = a rather different kettle of fish.

Personally I find it hard to see why your husband should have to pay anything more in SM because of her voluntary decision to have a child.

LMM