Divorce and Children: Child Maintenance Options for Divorcing Parents

Word Child Support composed of wooden letters, blog post discussing child maintenance options from KMJ family law solicitors in London

When you’re going through a divorce with children, arranging child maintenance is an important step. Find out about your child maintenance options.

Getting a divorce is a big step in any person’s life. While some couples choose to stay together and work through their problems for the sake of the kids, in many other situations, it’s much more beneficial to separate. However, arranging child maintenance is crucial — parents are required to pay as a minimum towards the upbringing of any children aged up to 16. In this post, we look at the child maintenance options for parents in the process of a divorce

What Is Child Maintenance?

Child maintenance is a monetary contribution paid by parents towards the upbringing of their child. This can include food, clothes and other essentials, though it may also be toys, swimming lessons or money for school day trips. In many cases, when two parents divorce, the children will primarily live with one parent. Child maintenance is the money paid by the parent who isn’t responsible for the day-to-day care of the child, for example, a father who looks after his children at weekends.

As child maintenance payments are for the benefit of your child, they can make a real difference. Adjusting to life after divorce can be difficult for any individual, but this is often more so the case when there are children involved. Providing for a child on what is essentially a single income can prove challenging, so a payment from the other parent contributing towards school clothes, for example, can be incredibly helpful.

Regardless of your situation, parents should be able to set aside their differences and put their children first to ensure that the start you gave your children continues into adulthood. While there are several options for child maintenance, it’s important to note that, regardless of which route you choose, refusing to pay child maintenance is against the law.

What Child Maintenance Isn’t

Before we look at your options for arranging child maintenance, it’s important to debunk the misconceptions surrounding child maintenance.

1. Child Maintenance Is a Benefit

Some may think that child maintenance is a payment made by the government to support parents — similar to Child Benefit. However, child maintenance is paid by the other parent as a way to make sure that both parents are contributing to their child’s upbringing.

Many divorcing parents opt to arrange child maintenance between them, however, as we’ll discuss in more detail below, in cases where this is not possible, the Child Maintenance Service can step in to help. Again, the Child Maintenance Service is not a means of getting additional financial support — it is, in effect, a middle man between the two parental parties to determine child maintenance.

2. Child Maintenance Is a Way of Punishing Parents

With child maintenance, the absent parent — in this case, we are referring to the parent who does not live with the children day to day — will contribute towards their child’s upbringing by providing monetary support. In the majority of cases, this will be the father, simply because children will often live with their mother following a divorce. Child maintenance is not a way of punishing the father (in this example) nor is it a contribution towards the other parent — in this case, the mother — to spend as she sees fit. All child maintenance payments are to support the child, such as for buying food, clothes or school supplies. In this respect, contributing to your child’s upbringing is just another responsibility of being a parent, just as a parent would pay for food and clothes if they were still living with their child and married to (and living with) their spouse.

What Child Maintenance Options Do You Have?

As a parent, you have several child maintenance options. These are:

  • A family-based arrangement
  • Using the Child Maintenance Service (CMS)
  • Applying to the courts for maintenance.

Deciding on an arrangement with your ex-partner without using the Child Maintenance Service (CMS) or applying to the courts is, obviously, the preferable option, and this is best done during the divorce process as you work out other agreements with your spouse, such as who the children will live with, who gets the house in the divorce and how you will split your other matrimonial assets. However, if this isn’t possible, you do have other options.

a child support arrangement contract to be agreed when deciding child custody

A Family-Based Arrangement

A family-based arrangement is where you and your ex-partner make a mutual arrangement on child maintenance, including how much will be paid, when and how often. Over half a million families choose to do this. There are many benefits of a family-based arrangement, including:

  • Speed — Agreeing on child maintenance payments can be a relatively quick process — providing you can both agree. This is useful if you’re looking to get a quick divorce.
  • Cost — Setting up a family-based arrangement is completely free. You aren’t required to seek legal advice — however, we would always recommend seeking the advice of a family law solicitor, as you’ll benefit from their expertise while going through the process of divorce.
  • Flexibility — Instead of a monetary payment, you and your ex-partner may decide a different type of support is more appropriate, such as buying school uniforms and supplies. A family-based arrangement can also be changed at any time, again, providing both parties agree to the new terms.
  • Privacy — A family-based arrangement will be tailored specifically to you, your spouse and your child’s unique situation. You know your children best and what support you’ll require, so this can be reflected in the agreement. It also prevents you and your ex-partner from having to disclose your income, which you’ll have to do if you opt for a different child maintenance option.
  • Communication — Any agreement, by its very nature, opens the communication lines between parties. In this case, it can help support better communication between parents. This may even help you and the other parent work together in other ways, which will only benefit your children, and it could help facilitate other agreements you need to make regarding your assets. Ultimately, improved communication will make the entire divorce process less stressful and potentially quicker, which is in the best interests of all involved.

However, there are also disadvantages of a family-based arrangement:

  • It’s not legally binding — If you and your spouse decide on a child maintenance agreement and they miss a payment or break their agreement in any other way (for example, not paying the agreed amount), there is no way to legally make them pay.
  • It’s not appropriate for everyone — Of course, every divorce is different. Some couples may not split amicably and, therefore, there is little hope of two parents being able to agree. In cases where one spouse poses a risk to the health and safety of the other, or to their children — such as in domestic violence cases — a family-based arrangement will not be an appropriate course of action. In this case, there are other routes you can take.

If you’d like to make a family-based arrangement, there are four main steps:

  • Work out what the agreement will entail:

The first step is to determine what your child needs and how much this will cost. You should note down essentials such as food and clothing, as well as childcare costs and any other age-appropriate items your child may need. Younger children, for example, may need a pram or car seat, while older children may need a mobile phone. If you’re struggling to work out how much raising your child will cost, Child Maintenance Options has a helpful form you can use as a guideline.

  • Decide how you and your spouse will share the cost:

This may be the most time-consuming aspect of making a child arrangement agreement. You and your ex-partner will need to discuss how much they should contribute to the upbringing of your child or children. Some parents agree to split this, while others will pay a specific amount depending on their earnings. How you agree on what payments should be made will depend on your circumstances — some parents decide to contribute a specific amount every month, while others will agree to pay a larger sum at specific times of the child’s life.

If you and your ex-partner cannot decide how much should be paid and when, but you would still prefer to have a family-based arrangement in place, you could choose to opt for family mediation. A mediator will be able to approach the situation objectively, take each of your earnings into consideration and help you reach an agreeable compromise.

  • Write the agreement down:

Again, a family-based arrangement isn’t legally binding — however, there are ways to make it so — but it’s still useful to have the agreement in writing and sign it. This will serve as a document you can reference over time, and it will also prove useful if you and your ex-partner decide to change your agreement, as you’ll both be able to see what was initially agreed.

  • Stick to it and review it regularly:

You should review the agreement before signing it to make sure the terms are agreeable to you and your spouse. After agreeing, the key is to stick to it. You and your ex-partner should make all efforts to keep communication lines open and honest to ensure that the agreement continues to be in the best interests of your child.

It’s also advisable to regularly review the agreement, for example, when children meet milestones, such as having a birthday or going to secondary school. You may also choose to review the agreement in the event of unexpected circumstances, such as if you or your ex-partner loses their job. If you are receiving child maintenance and this happens to you, you may require some additional support for your children during this time. If this happens to the parent making the payments, they may not be able to afford the full payment until they get a new job. Openness, trust and transparency are crucial to making a family-based agreement work over the long term.

If you and your ex-partner agree on a family-based arrangement but you want to make it legally binding for additional peace of mind, you can do so by getting a consent order. This means that should the other parent stop paying child maintenance, the court can enforce the order to ensure they do. The benefit of a consent order is that it can also be used to outline other arrangements, such as who pays the mortgage on the marital home. It’s crucial to consult a child law solicitor in this situation, as they will be able to help ensure the consent order is agreeable to both parties and file all the appropriate paperwork on your behalf. If you and your ex-partner later decide to change a legally binding agreement, you will need to go back to court, which can prove costly. It is also very important to note that after 12 months from the making of an Order, either party can apply to the CMS for a child maintenance assessment and, provided the payer’s income is less than £156,000 gross per annum, that assessment will override the Court Order and the Court will not have jurisdiction to deal with the matter.

a family standing under a roof of a house build of hands

The Child Maintenance Service

For parents who can’t agree on a family-based agreement, or for those where it’s not appropriate, there are other options to decide on how much child maintenance a parent should pay. The Child Maintenance Service (CMS) is a government organisation set up to determine child maintenance payments in the event that parents disagree.

Before applying to use the CMS, you must first contact Child Maintenance Options, which is a free and impartial service set up by the Department for Work and Pensions (DWP). Advice from Child Maintenance Options is free, however, you will have to pay an application fee to use the Child Maintenance Service, and you may also have to pay collection fees when you either make or receive a child maintenance payment.

If you use the Child Maintenance Service, there are two ways child maintenance is paid:

  • Direct Pay
  • Collect and Pay

Regardless of the method of payment, the CMS will work out how much child maintenance is fair. This makes this route ideal if you aren’t sure how much child maintenance you should pay or are entitled to, but it also means you won’t get the flexibility that you would with a family-based agreement. You can use a child maintenance calculator to get a rough idea of how much child maintenance you can expect to pay or receive. This amount takes into account a variety of factors, for example, how many children you and your ex-partner have, you and your ex-partner’s income, and whether you and your spouse are entitled to any other benefits, such as Income Support, Jobseeker’s Allowance (JSA) or State Pension.

With Direct Pay, it is the responsibility of the paying parent to keep up with payments. After the CMS has decided how much a parent is entitled to, the other parent must keep up with repayments. With this method, the arrangement can last until the child is aged 20, providing they are in full-time education (up to A-Level or equivalent). If the paying parent misses payments, you can move to Collect and Pay, however, this is subject to additional charges.

With Collect and Pay, the CMS will collect the money from the paying parent and pass it onto the receiving parent. The benefit with this is that you don’t have to worry about your ex-partner not paying child maintenance, as the CMS has the power to take money directly from your ex’s wages or pension. It’s important to note that if you move to Collect and Pay, both you and your ex-partner will be subject to fees (a 4% charge from the parent receiving the payment and a 20% charge from the parent making the payment), which is money that could have been given towards child support.

Applying to the Courts

Your final option is to apply to the courts for child maintenance. There are limited circumstances when this might happen:

  • If the parent who needs to pay child maintenance lives abroad
  • If you need help to work out how much (at least £156,000 per annum) child maintenance should be paid for step-children or disabled children
  • When the paying parent has a high income and the court is required to determine whether the other parent is entitled to a “top-up” payment on top of the amount determined by the CMS.
  • If a child undertakes further education beyond secondary school.

As earlier stated, you will also use the court if you draw up a family-based agreement with your spouse and wish to make it legally binding by obtaining a consent order.

When to Seek Advice from a Solicitor

If you are seeking a divorce, you should always seek the guidance of a divorce solicitor. Where children are involved, it’s always advisable to receive advice from a solicitor experienced in child law. A solicitor will be able to help you agree on terms that are in the best interests of your children.

If you need to apply to the Child Maintenance Service, you can elect a representative to act on your behalf. This person will be able to support you with making the initial application and gather together all the necessary information to state your case. They will also receive all correspondence related to your child maintenance case.

Are you going through a divorce and considering your child maintenance options? Whether you are looking to create a family-based agreement, use the Child Maintenance Service or apply straight to the courts, our top London divorce lawyers have the knowledge and experience to help. Contact us today for your free, no-obligation consultation with a member of our expert team.

Clayton spent five years working in family law with a firm in Australia before moving to the UK in 1999. He deals with all aspects of family law, specialising in all family matters, offshore trusts, company structures, international law, prenuptial agreements, high net worth cases and cohabitation law.