Advice appreciated - methods of varying an order

Hi,

Excuse the long post.....

Would appreciate some advice. Our situation is that the ex wife was very generously compensated by a Court Order with very stiff terms and also with (global) maintenance set very high (she paid a lot of money for expensive solicitors to obtain this outcome in court) - the only part of the ''deal'' she agreed to was to make her best endeavours to improve her work situation - retrain etc.

She has no intention of doing ANYTHING that will improve or change her circumstances and has shown that time and again - she thinks she is on easy street for life so ''best endeavours'' be damned! She is also EXTREMELY un co-operative as she has the ''Golden Goose'' Court Order (the gift that keeps on giving). She is also overhoused.

There is no real payment end date in sight, the maintenance is global - so difficult to dispose of as kids supposedly fall off the end and become adults, leave home etc. (which has already started to happen). There is also major disparity with our combined incomes versus her ''earn as little as you can'' income (done deliberately) plus any benefits she gets.

We have consulted our solicitor who feels we have grounds to vary but that we should also consider (or at least offer) mediation or collaborative law as an option - so I am curious to see whether fellow boarders really think that IS an option (particularly after what I have just read on here about CL).

My concern is even if she agreed to CL then if the acrimony comes into it (which no doubt it will) and it cannot be continued leaving court is the only option - that would mean paying for CL PLUS court. Question - if the other party causes CL to break down can you apply for the costs against them as you (potentially) can in court?

Also, if we proceed to court, not only will it cost £5-10K which is a lot of money, there is no guarantee of success or that much will be achieved. I am also curious as to the EXACT process and undertand that our finances will be turned inside out yet she doesn''t have to account for herself? Can anyone provide more detail?

Has anyone else been in this ''no end in sight'' straglehold? the solicitor''s view is that this will have to be varied at some point so why not now? Also, my partner''s mental health is being severely impacted by the situation and he wants an end date for this nightmare - which I can understand. Youngest kid is 15 yrs atm so an end is potentially 7 more years away (he''s been paying since 2002). How could we prove to the court that this needs to change for the sake of his mental health? Has anyone been in that situation? This is genuine - not just swinging the lead.

I have bad vibes about court after getting royally screwed last time and the effect it has on one''s home life (not pleasant).

All advice gratefully received. Thanks for reading.

Thanks

EA

Does the ''best endeavour'' clause mean that if she got a better paid job then the sm would decrease?

How would anyone think that would give someone an incentive to work more???

Has your partner got medical records to back his claim that his mental health is being affected?

Sorry you find yourself in such situation. Hope you can find a way to release the stress this millstone around your neck must bring you.

Hi Mathsisfun (not sure I agree with that LOL),

Thanks for your quick reply. Exactly what we though after the order was granted - there is NO inventive on her side! So much for a Clean Break! It is indeed a millstone....

He did see a counsellor a couple of years ago but she seemed reluctant to to write any report and it was also for another issue on top of this one. I have asked him again to instigate some form of help / support for his MH but he says he has no real faith in it. As I pointed out to him, if we go back to court that gives us no evidence - I can''t exactly take the stand and say what a nightmare he can be to live with due to this issue or the threats he makes because of it!

I also hope we can find a way out of this as if we don''t I could quite seriously see him ending his life over it and that cannot be right. It truly feels like no one cares about our situation or his mental health - I have tried various avenues with no success.

EA

Can anyone help me here? I feel tumbleweed rolling through this post.....

Thanks

Hi Enough Already,

I am sorry you and your partner are in this difficult situation and sympathise with his mental health issues.

Variation of order can be a traumatic path, take in excess of 12 months and be costly if the other party fails to comply.

Firstly, from my understanding, CL is very much dependant on both parties entering into it with an open mind and a want for amicable outcome. Both parties sit round a table with their respective solicitors, if talks break down, you then get told the solicitors can no longer act for you. This results in finding new representation, court and loss of fee''s paid. Costs are irretrievable.

With court, there are two options, magistrates or county.

When applying to vary the court will look at the ability of the payer to pay and the needs of the recipient. Your partner would have to provide proof of considerable change in circumstances. Health issues would need to be backed up by medical evidence and reports.

In the county court, both parties have to provide full financial disclosure by way of form E. If things get strung out it can go to 3 hearings.

This link will give you information about variation.

www.thomasmore.co.uk/ImageLibrary/Capital%20City%20Notes.pdf

I am going through this at the moment so If you have other questions, please ask.

I hope this helps,
Best wishes,

NWTT.

I''m no expert EA, but I can add what I know.

An application for downward variation can end up an upward variation or even with no variation at all.

I did think that the ''Payer'' had to evidence a change in circumstances (financially) which lowers their income which would in turn lower the amount paid to the recipient.

I would say you''d need to ask your Sol what chance your partner would have to proceed and it would be your decision to take whatever risk there is. Your Sol will have seen the Order (wording and detail is everything)

I sympathise and agree the Order appears to be unfair for your partner.

Dukey, LMM or Charles may be able to give you an idea of what chances your partner has to get the result he wants (on the information given), with variations I do know there are always risks.

Good luck

WR

Hi,

Thanks for the advice. Yes I too am aware that it is risky and can even result in an upward variation, hence being as enthusiastic about it as a cat in a bath! Also mine and my partner''s income has probably increased since the order whereas she has done nothing to improve her circumstances. We always look good on paper but it is about whether you actually try and make something of yourself and have ambition - why should we be penalised for that? Also - do I HAVE to comply with disclosure? If I pay 50/50 of the household expenses then what difference does it make to the case WHAT I earn?

The solicitor said he felt there were grounds as there are circumstantial changes around the things ordered (such as kids becoming self supporting, leaving home etc.) It is less about the money than the lack of an end point to be honest.

Has anyone dealt with variation away from the original area? We would like this to be heard in County Court on our circuit some 100 miles away from the original court (and biased judge). I feel it is a much fairer playing field here. Is it frowned upon?

All I know is that last time we went though all this (the 3 original financial hearings) it was VERY stressful, she spent a fortune, he self repped and was out-gunned on every front, the judge was ridiculously biased and pro-wife, she lied and got her partner to back her up (so hard to dis-prove), played the innocent, was coached by expensive barristers etc. so the thought of doing that again is not palatable. She will fight tooth and nail to keep the original order so it will probably go the full 3 hearings. It is such a waste of money.

I think we will offer collaboarative law as a start point but I am not sure it is wise to go that route as she will make it break down with her bad attitude!

Thanks NWTT - I will read that link and may have further questions. All advice gratefully received.

EA