I’m divorced for 18 months and separated for nearly 3 years. I’ve been paying maintenance to my ex-wife for 2 years now after we split financially after we closed the joint bank account which she had access to during the first year of separation.
At the time of separation, I was commuting to work and this meant I was only able to see my child on one day of the weekend for about 6 months until I managed to change my job to be nearer to my home location. Since then I have been having her 2 nights in the week and a night and a whole day on the weekend, so 3 nights in total. Since the covid situation I have been working from home so when my child returned to primary school, I have been able to pick her up from school on the nights I’m scheduled to have her which has been great, and I now have better flexibility in working from home on the nights I have her. So currently I have her 3 nights a week and one day on the weekend which has been working really well for both me and my ex-wife.
We have always agreed that we will be 50:50 shared parenting and have a mutual (not legal) agreement around this. I am able to pick her up from school, have her stay overnight with me, and take her in the morning back to school.
Recently we have switched to having her alternate weekends and I have asked her if I can have my child for an additional night every other week to even things out so we have her an equal amount which I want to maintain. My child has taken to the alternate weekends really well. Since asking for the additional night once every 2 weeks my ex has pushed back to say she feels it is too much change for my child.
I’m currently paying over £400 per month in maintenance and I’m one night short (every 2 weeks) of having her 50:50 which I have asked for.
My question is: If I manage to get my child for the additional night every 2 weeks, do I still have to pay child maintenance? I don’t think I should if I’m doing my share of the child care and costs. I’m willing to pay for all her clothes through out the year including all school uniform. Also, what’s the best way to get my ex-wife to agree to the additional night every fortnight? Surely it can only be a positive thing for my child?
If she won't agree to it, then you can try mediation, and if that doesn't work, then you would have to go to court. In my view, a court is probably not going to consider it worth making an order changing from 6 days per fortnight to 7 days as you are already getting a lot of contact, and if you try to make it about the financial side, the court won't be interested in this. I presume that you have had your maintenance reduced by 3/7ths for the time you are having.
I assume you are paying child maintenance via CMS; if so then I am pretty certain that she is stalling on the extra night as this will result in a 50:50 arrangement and hence no maintenance will be due.
I have to be pretty honest with you; the courts do not like to order 50:50 as the next argument will be over claiming the benefits, I'm not saying you would argue over this but this is how the court system views/works. You've got substantial contact with your daughter (6 nights a fortnight) and this is how the courts would probably view it. ACTD is right, mediation would be your best alternative and maybe you can also agree a mutual amount that you would be willing to pay as maintenance but would need to bear in mind that you already have your own costs for your daughter to manage.
Having 50:50 shared residency does not by itself mean that no child maintenance is payable should your ex continue to claim it. In order for the CMS to make a determination that no maintenance is payable you would need to demonstrate that ALL costs and responsibilities were shared. This includes not just shared residency but also things like responsibility for doctor and dentist appointments, registered address at the school, who receives the child benefit, etc as well as an equal share of all financial responsibilities.
In practice (and in the absence of any court order which specifies equal responsibility) this can be very difficult to prove if your ex is fighting against this as Child Benefit is only paid to one parent, and you can only register one address at the doctor, dentist or school etc. In my view the ‘no maintenance payable’ scenario is most likely if you and your ex reach a private agreement on shared residency and who pays for what, such that she agrees not to claim maintenance.
However, if Child Maintenance is claimed and granted, then the paying parent is only legally required to pay the CM amount to the receiving parent. They are not legally obliged to also pay a share of any other costs (such school trips, winter coats, even pocket money, etc. etc.), though where the child stays with the paying parent for any number of nights then that parent is required to provide suitable housing and feed the child etc during that time (and that is why under shared residency a discount applies on the ‘full’ CM amount).
That is to say - as long as you pay the required maintenance amount to the receiving parent, and feed and house your child when they stay with you, then you are compliant with the law. So by claiming Child Maintenance the receiving parent effectively assumes sole legal financial responsibility for lots of things.
Another thing to consider is that pushing for the extra night and going through the court process actually causes 'stress/anxiety' to your ex and a breakdown in your current amicable (ish) relationship thus causing her to reduce the amount of time you have child and then have a bigger problem through the courts.
I'd consider as others have suggested, reviewing the online cms calculator, consider mediation, try to discuss with ex.
I have seen and heard of situations quickly turning for the worse as soon as court action commence and/or money starts to get discussed.