Kevin Coster’s divorce from ex-wife Christine Baumgartner has certainly proved to be expensive. Christine was recently awarded an eye watering $63,209 in monthly child support, in respect of the three children she shares with Mr Costner, despite requesting an initial sum of $161,592. The Daily Mail has reported that the judge in the case says awarding Christine this level of child support would be ‘disguised spousal suport’.
Whilst this judgement was provided by the California Superior Court, it is good opportunity to reflect upon the law relating to Child Maintenance in England and Wales.
Child Maintenance Service
Child maintenance is governed by the Child Maintenance Service (CMS), previously known as the Child Support Agency. Whilst a parent may not live with, or even see their child, they are still financially responsible for them. It is the CMS who governs this financial arrangement and determines the specific amount of maintenance payable by the non-resident, to the resident parent.
Child maintenance is payable until either:
• The child attains the age of 16; or
• Until the child reaches the age of 20, should they remain in full time education.
The amount payable, depends upon the gross income of the paying party. Deductions will be made from the calculation depending upon how many overnights (if any), they have with the child. Regard is also had to the number of children the paying party is responsible for. The applicable amount calculated by the CMS is reviewed on an annual basis.
Top Up Order
If the gross income of the non-resident parent exceeds £156,000 per year (£3,000 gross per week), the resident parent can apply to the Court for what is known as a ‘top up order’.
Effectively, the resident parent can seek extra maintenance, in addition to the amount payable under the Child Maintenance Service.
A ‘top up order’ can be applied for irrespective of whether the parties are married or have previously been married. The correct procedure to be used when applying will differ depending upon your marital status and this is something which we at Maguire Family Law can discuss with you in more detail.
Points to note for parent’s applying for child maintenance via the CMS
• An application fee of £20 is payable. However, this is not applicable if:
o You are under the age of 19
o You have experienced domestic abuse. See our article on Child Maintenance & Domestic Abuse.
• If you believe the figure calculated by the CMS is incorrect and/or if you are aware that the paying parent’s income has changed, you can apply to the CMS for their calculation to be reviewed.
• You will not be taxed on the maintenance received.
• Payment does not affect any other credits you may be entitled to, such as Universal Credit.
When can the Court become involved?
In addition to ‘top up orders’, there are further instances in which the court can become involved in the calculation of child maintenance:
• Separating parents upon their divorce can agree between themselves, the amount of child maintenance payable by the non-resident party. For any agreement to be binding, the arrangement should be reflected in a Financial Remedy Order, approved by the court.
This can be advantageous in that the criteria for maintenance can be tailored to your specific needs and may be more extensive than that imposed by the CMS. For example, parties may agree that maintenance is payable until the child completes full time tertiary education.
It is important to note however, that the agreement reached is only binding upon the paying party for a period of 12 months. Thereafter, either party can apply to the CMS for a calculation. Furthermore, within 12 months of the order being made, either party can apply to the court for the order to be revoked, varied or suspended with.
• Alike the Costner divorce in which Christine was awarded court ordered child maintenance, the courts in England and Wales have discretion to award periodical payments for the benefit of the child at a final contested hearing within financial proceedings.
Factors the court will look at include the standard of living the family previously enjoyed and the income resources of both parents.
• Although limited, there are instances in which parents who have never been married, or have subsequently divorced, can apply to the Court for child maintenance under Schedule 1 of the Children Act 1989. Applications may concern: –
o Payments relating to educational expenses
o Expenses connected with the disability of a child
As detailed above, although child maintenance is primarily governed by the Child Maintenance Service, there are many instances in which the court can become involved on the issue of maintenance and the amount payable.
Whether you are currently contemplating divorce and have financial concerns regarding your children, or if you have never been married to the parent of your child, the specialist team at Maguire Family Law are able to assist and advise on the options available to you.