Child maintenance: changing payments and dealing with arrears

If a child maintenance calculation is wrong or payments have become unaffordable, use the proper review or variation process. Do not hide income or simply stop paying. This guide concerns the CMS in Great Britain; Northern Ireland has a separate service.

In this simple guide, we’ll explain:

•  How to work out child maintenance
•  How child benefits are different from child support
•  Ways to make sure your divorce is fair

Rental-cost statistics after divorce do not determine child maintenance. The calculation depends on the statutory rules and the family’s actual circumstances.

Check the decision letter, report relevant changes and obtain advice if you disagree or cannot afford payments.

Changing child maintenance payments lawfully

It’s important to note that the law says both parents are responsible for taking care of their children financially, whether they live with them or not.

So, avoiding child support could have serious legal consequences.

There are ways, however, to manage your child’s maintenance payments responsibly and legally. Some are listed below.

• Parents can make a private arrangement or use the CMS. A private agreement can be flexible but does not have the same statutory enforcement as a CMS calculation. Direct Pay and Collect and Pay are arrangements within the CMS system.
• Tell the CMS about relevant income, benefit, child and care changes. Not every income fluctuation triggers an immediate recalculation; specific rules apply to historic HMRC income, current income and annual reviews.
• A nil or flat rate depends on the statutory rules and the parent’s circumstances. Studying or having little income is not a universal exemption. CMS maintenance generally concerns children under 16, or under 20 in qualifying education or training; university normally does not qualify.
• A variation considers specified additional income or expenses. It is not a general reduction for high living costs or unsecured debts. Give accurate evidence and ask the CMS whether the legal categories apply.

Don’t forget that these suggestions are meant to help you manage your responsibilities, not avoid them.

The purpose of child maintenance is to make sure the child is happy and healthy. Avoiding these payments can lead to legal action, fines, or prison time in extreme cases.

Not only that, by trying to avoid payment child support then you are not putting your child(ren) first and they could suffer because of your actions.

The way I see it, it’s important to consider the impact on your children’s mental and emotional well-being if you’re trying to avoid paying child support.

Seek advice and communicate with the CMS. Only contact the other parent where safe and appropriate; tell the service about domestic abuse or other safety concerns.

Divorce and child maintenance are separate questions

The divorce process and financial arrangements are distinct. In England and Wales, no-fault divorce has applied since 6 April 2022, with limited grounds to dispute the divorce itself.

Disagreement about money or child arrangements does not normally mean the divorce itself can be contested in England and Wales. Procedures differ in Scotland and Northern Ireland.

Child maintenance principles remain the same regardless of whether a divorce is contested or uncontested.

According to Child Maintenance Service guidelines, both parents are responsible for raising the children, even if they don’t live with them.

Disagreement between parents can make practical arrangements harder, but it does not change the statutory calculation rules.

The Child Maintenance Service can calculate the amount based on certain criteria, such as income and number of children, if parents cannot agree.

Court jurisdiction for child maintenance is limited where the CMS has jurisdiction. Specialist advice may be needed for overseas cases, high income or particular additional expenses.

Parents may make a private arrangement whether or not they agree on other divorce issues, provided this is safe and suitable.

No-fault divorce in England and Wales does not replace the separate child maintenance system. See related guidance.

Use the appropriate private, CMS or court route for the circumstances. Agreement on the divorce does not determine the maintenance amount.

The well-being of the child is paramount, and both parents must contribute financially to the child’s upbringing.

Divorce Costs

Child support plays a crucial role in divorce, but it’s just one aspect of the financial picture. Keep in mind that divorce involves various expenses.

For a full overview, check out the table below.

What if there is a court maintenance order?

When you and your ex-partner can’t agree on how to split your money, you can ask the court for a financial order, also known as an ancillary relief order.

This would also be appropriate if you believe your ex-partner is trying to protect money by hiding it before the divorce. Various assets like pensions, property, savings, and investments can be divided in this order.

A court may make child-maintenance provision where it has jurisdiction, but the scope is not unlimited.

A court child-maintenance order does not automatically expire after a year. After that period, either parent can usually apply to the CMS if it has jurisdiction, and an effective calculation can replace the relevant provision.

The CMS does not automatically take over when a year passes. Court orders for some special categories of maintenance have different rules.

The CMS calculates how much of the payer’s income should go to the children’s primary caregiver. Even if they don’t live together, both parents have to contribute to raising their children.

Get advice about the wording of an existing order and the correct route before changing payments.

A CMS application is not inevitable in every case. The arrangement, court jurisdiction and any later application determine the position.

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Can parents agree payments privately?

A private agreement may be possible if both parents are willing and it is safe and suitable. Agreement does not necessarily make a complex calculation straightforward.

There are three options at your disposal, as listed below.

• A private arrangement can cover the amount and method of support. It is not unlawful, but an informal agreement lacks the same statutory collection and enforcement as a CMS calculation.
• The Child Maintenance Service can calculate the amount if you can’t agree on a family-based arrangement. Various factors will be considered, like income, children, and shared responsibilities. CMS offers a statutory child maintenance scheme that’s different from Child Support Agency schemes.
• A court application may be appropriate where the court has jurisdiction, such as some overseas or additional-expense cases. It is not automatically the best route whenever parents disagree.

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What if Your Ex-Partner Is Avoiding Paying Child Maintenance?

A lapse in receiving child maintenance can be stressful and put a strain on your finances and therefore potentially affect your ability to provide for your child(ren).

There are a few things you can do if your ex-partner in the UK won’t pay child support.

Some of these are listed below, but which is right for you will depend on your own situation.

• If a private arrangement fails, consider a CMS application. For missed statutory payments, contact the CMS promptly. Do not contact the other parent if doing so would be unsafe. See related guidance.
• There are a few ways the CMS enforces payments. The CMS can take the owed amount directly from the paying parent’s earnings or their bank, building society, or post office account if they don’t pay.
• Further enforcement may be available under the applicable statutory process. A liability order is not an admission by the paying parent; it establishes liability for enforcement where the requirements are met.
• The CMS decides the statutory enforcement steps available for its arrears. Seek advice about a court order or private arrangement rather than assuming you can personally use the CMS’s powers.

Tell the CMS about payment problems and relevant direct payments. Collect and Pay normally adds 20% for the paying parent and deducts 4% from payments to the receiving parent, but it does not guarantee successful recovery.

Dealing with child maintenance that is in contention can be challenging, but remember that both parents are legally responsible for raising their children, even if they don’t live together.

References

1. Money Helper – Divorce Costs