IF you’ve split up from the mother or father of your child, one thing you need to consider is child maintenance.

This is money paid from one parent to another to cover the higher costs faced by the resident parent – theone who has the children living with them most of the time.

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The government says that you must have a child maintenance arrangement in place if your child (or children) is aged under 16, or under 20 if they’re still in approved education.

It’s important to note that while the amount of child maintenance paid is influenced by how often the non-resident parent looks after their children overnight, child arrangement orders should not be influenced by who will pay what.

Victoria Furlong, family partner at Keystone Law said: “The resident parent must not stop the non-resident parent from spending time with the child if child maintenance has not yet been agreed. 

“The child arrangements and child maintenance are entirely separate matters.

“To deny the child a relationship with a parent over child maintenance can be against a child’s best interests and would be criticised heavily in the court arena.”

How is child maintenance calculated?

Child maintenance is calculated by looking at the income of the non-resident parent. 

When making the calculation, the Child Maintenance Service (CMS) considers:

• the gross income of the non-resident parent
• the number of children they have
• the number of nights each child stays overnight with the non-resident parent,
• any pension payments the non-resident parent makes
• any other children the non-resident parent has to support in their household. 

It will then apply one of five rates.

Amanda Bell, co-founder of SeparateSpace, an affordable divorce platform, said: “The good news is you don’t need to work through the formula yourself because there’s an easy-to-use online calculator on the government website.

“The CMS formula only applies to income under £156,000 per year, so where one person earns over this threshold it’s common for more maintenance to be paid.”

You can find the calculator here.  

The figure generated by the CMS formula represents the minimum amount payable, and some parents agree to split additional expenses such as school trips or computer equipment.  

What happens if there is shared care, or 50/50 care?

If there is shared care, the CMS will consider the number of nights each child stays overnight with each parent. 

Me Bell said: “Guidance on the government website is confusing on this question. 

“On the first page it states, ‘you will not have to pay through the Child Maintenance Service if you are sharing care equally with the other parent’, but if you go on to complete the online questionnaire, indicating that your child stays overnight half the time with their other parent, it will indicate a sum to be paid.”

This, she explains, is because the government distinguishes between situations where there is absolutely equal shared care and where the child/children spend half their time (or over 175 days a year) with the non-resident parent.  

In the latter case, the CMS has jurisdiction, and the formula will operate to apply a 50% reduction plus a further £7 deduction to the amount payable. 

Ms Bell explained: “The test is whether there is an equal sharing of day-to-day care and is not referable to the number of nights on which care is provided overnight.

“As a rule of thumb, the CMS assumes the parent in receipt of child benefit is the person providing day to day care to a greater extent and will deem them the person who is to receive the maintenance.”

If the day-to-day care of a child is shared equally by the parents, the paying parent may not have to pay maintenance for that child.

What happens if my ex is self-employed?

The child maintenance calculation should include all the income received by the non-resident parent, even if they’re self-employed. However, sometimes there is friction because of the way that self-assessment tax returns are completed.

Ms Furlong said: “If your ex is self-employed, the CMS will assess their income based on their declared income for tax purposes. This can be more difficult to calculate, as self-employed income can vary.

The CMS has methods for assessing self-employed income and can request further evidence if required, especially if there are concerns that not all self-employed income has been declared.”

The CMS relies on the income details filed at HMRC for the latest tax year.  But, if your ex is required to file a self-assessment return, the information can be significantly out of date because there is a time-lag between the tax year and when the tax return has to be filed.

Day added: “If you know your ex has an income but it’s not reflected in their tax return (for example they have diverted income through a director’s loan account or are retaining undrawn profits in a private company) so hasn’t been included in the child maintenance calculation, then the assessment can be varied. “

If this is a concern, you should get in touch with the CMS and ask if you can make a variation to get this income included in the child maintenance calculation.  You can call the CMS on 0800 171 2345.

What happens if my ex has another child or moves in with someone who has another child?

The CMS will take account of another child your ex has to support in their household and this may reduce the amount of child maintenance they are required to pay.

Ms Furlong said: “This includes any children living with them and any arrangements that have been made directly for other children.”

And Ms Bell added: “The figure produced by the CMS formula is adjusted for other children living in the paying parents’ household. So, if your ex has another child who lives with them or moves in with someone who has another child, it’s likely to impact the amount of maintenance you’re entitled to.” 

When does child maintenance stop? What if my child goes to university?

Child maintenance payments through the CMS stop when a child reaches 16 or completes full time secondary education. It can continue till age 20 if the child stays in approved education.

Ms Day said: “For children doing A levels, child maintenance usually finishes on 31 August following the completion of their exams. 

Otherwise, a child might continue to qualify to age 20 provided they are in secondary education or returning to it or on certain types of government training.”

However, it is possible to agree to pay child maintenance for longer than this.  For example, some families agree that child maintenance will be paid until the child finishes full time tertiary education (e.g. until they graduate from university). 

In these circumstances, the paying parent tends to have a high income. 

Ms Day added that where this is agreed, the payment is usually split so that the non-paying parent/parent with care receives one third to half of the maintenance (which covers a contribution to the child’s costs when they’re back at home over university holidays) and the rest of the maintenance is paid directly to the child to contribute to their day-to-day living costs, such as accommodation, food and travel.

Me Furlong said: “Sometimes parents agree child maintenance arrangements in the context of a divorce and include in a Court Order provision for one parent to pay child maintenance if the child goes to university and/or the university fees or a proportion of them.”

What happens if my ex doesn’t pay? 

Private arrangements are not legally binding, but CMS arrangements are. So, if your ex is not keeping up with the terms you’ve agreed, you will need to make an application to the CMS to get an assessment.  

If you already have a CMS assessment, you will either have agreed ‘direct pay’ (when the CMS has made a calculation but isn’t involved in the payment of the child maintenance) or ‘collect and pay’ (where the CMS collects the child maintenance for you).

Keep a record of any payments that are missed altogether.  Then contact the CMS and let them know that the payments aren’t being made. 

If you’re in the ‘collect and pay’ scheme, they should already be aware but get in touch with them anyway. You should keep a record of every communication with the CMS.  

Ms Bell explained: “If you’re in the direct pay scheme, then the CMS may move you to the ‘collect and pay scheme’.  You can also ask to be switched into this scheme.  It does come with a fee so you’ll end up with slightly less money (your fee will be deducted from the child maintenance) – and your ex will end up paying more (their fee will be added to the amount they have to pay).”

If your ex still doesn’t pay, the CMS has powers to enforce outstanding maintenance payments.

Me Furlong said: “The CMS can invoke its enforcement methods, which may include action against your ex to take the arrears directly from their wages or bank account.”

How do private arrangements work

Private agreements are not legally binding, but they can be very useful and allow more flexibility. They can also be varied quickly if circumstances change.

If you have a consent order (i.e. a court order finalising the finances after a divorce) and your order provides for child maintenance that is different to what the CMS would calculate, then the general rule is you’re stuck with that agreement for 12 months.  

After that point, either of you can apply to the Child Maintenance Service for an assessment.  However, Day says there are some ways to draft the final financial agreement which means that any CMS assessment doesn’t change the amount payable.

What happens if CMS makes a mistake?

The Child Maintenance Service calculates child maintenance in accordance with a formula and set criteria. 

Most of the time, they get it right. However, there may be instances when the CMS may have made an error or missed evidence when making their decision on a child maintenance calculation.

Nusrat Siddique, associate solicitor at Family law firm, Rayden Solicitors says: “If you receive a decision from the CMS which you do not agree with, you can ask them to review their decision. This process is known as seeking a mandatory reconsideration.”

If you think an error has been made, you need to request a mandatory reconsideration within one month of the date you receive the original CMS decision letter. 

The steps you’ll immediately need to take are:

• Checking your original decision letter to see if the decision can be reconsidered, or whether you have to go straight to an appeal at the Social Security and Child Support Tribunal
• Checking your original decision letter to see if you are within the one-month deadline

Siddique said: “If you act on time, as part of your request for a mandatory reconsideration, you will need to set out very clearly why you consider the decision that has been reached to be wrong, with a supporting statement and documentary evidence, such as new medical evidence, bank statements, pay slips, and tax returns, proving your position.”

Once you have requested a mandatory reconsideration, the CMS will reconsider their decision and give you a letter called a “mandatory reconsideration notice”. This notice will set out whether they have changed their original decision, the reasons for their decision and the evidence they have based their decision on. 

If the CMS changes its decision, it’ll change the amount the non-resident parent must pay and backdate it to the date of its original decision. 

If you miss the one-month deadline, you can still apply for a mandatory reconsideration but you need to provide a “good reason” for why you failed to meet the deadline.

A good reason could include suffering from a serious illness or bereavement. It is up to the CMS to then decide whether it proceeds with your request or refuses it.

Siddique explained: “Even if the CMS refuses your application because you failed to meet the deadline, you can appeal to a tribunal so long as you apply within 13 months of the date on your original decision letter. Again, the reason for the delay will be important.”

If you still believe the outcome of your mandatory reconsideration request is wrong, you can appeal to the Social Security and Child Support Tribunal, which is an independent body.

Again, timing is key. You must submit your appeal within one month of the date of your mandatory reconsideration notice. If you miss that deadline, you might be able to ask for a “late appeal”, but you must give reasons for why your late appeal should be allowed.

After you submit your appeal, you can manage it online and provide evidence. You will be given a date to attend a tribunal hearing, where a judge will listen to both sides of the argument before deciding on the form of a “decision notice”.

Siddique said: “You must remember that while the CMS decision is being reconsidered or appealed, it will stay in force. You must continue to make payment for the child’s maintenance following the calculation on the original decision letter until the issue is resolved.”

If you don’t pay, the CMS may force the collection of what they think you owe.  If they do so they will automatically charge an additional 20% on top of what they think you owe, so it can be very costly.  

Siddique concluded: “The process for challenging a CMS calculation can be difficult, particularly with the time limits and putting together the evidence to support your case. If you are considering challenging the CMS’s decision, early legal advice should be obtained.”