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Divorce and your Children

By: Dave Howell - Updated: 28 Jul 2016 | comments*Discuss
 
Divorce Living Apart Petition

When children are involved divorce can become a complicated undertaking. If you separate from your spouse where your children will live and what access arrangements the other parent will have must be decided. The court would rather these matters are agreed by the parents who are divorcing, but when an agreement can't be reached the court will make a ruling (called a court order) that will set out who the children will live with, and what access the other parent will have.

The court that handles your divorce will not grant your final decree until it is satisfied that the dependent children's well being has been taken care of. A dependent child is defined in law as anyone under 16 years of age, or under 19 years of age if in full-time education. Step-children and adopted children also come under this definition, but not foster children.

Children and the Courts

When you send in your petition for divorce to the County Court, the court will look at your paperwork and see if you have agreed where your children will live (residence) and how contact with them by your spouse (contact) has been arranged.

If you and your spouse can't agree on how residence and contact will be arranged you can apply to the court for a court order under Section 8 of the Children Act 1989. Before you do, it's a good idea to use a mediation service to see if with their help an agreement can be reached. This is always preferable to a court order. If a court order is needed a solicitor can help you apply for this.

The Children and Family Court Advisory and Support Service (CAFCASS) will usually help the court make its decision about your children. Their officers are independent and highly trained in social work. Their role is to mediate between you and the court so an amicable arrangement can be arrived at. You can read more about CAFCASS, on their website.

Supporting Children after a Divorce

One of the most important issues that the court will consider is how your children will be financially supported after your divorce is complete. The Child Support Agency (CSA) will be replaced by a new agency, but this isn't likely until the end of 2008.

Maintenance payments for your children after your divorce will depend on a number of factors. If you are claiming Job Seeker's Allowance or Income Support, you must use the CSA. If you are not claiming these benefits then maintenance arrangements must be made directly with your partner. You can also ask the court to make a court order about maintenance payments.

You won't get child maintenance if your partner is:

  • In prison
  • Is a full-time student and on a recognised course
  • Is aged 16 to 19 years old and is in non-advanced full-time education (A Level or NVQ level 3)
  • Living in a residential care home
  • Is living overseas (unless they work for an employer based in the UK or are a member of the UK's armed forces)

Children Leaving the Country

If you are involved in a divorce that could result in your children being taken out of the country you can take a number of steps that include:
  • Tell your solicitor about your fears as soon as possible. They can ask for a court order that prevents the children from being taken out of the country
  • Keep your children's passports in a safe place, and inform their schools of your concerns
  • Inform the police. They can issue an alert at all UK ports

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[Add a Comment]
Lainey - Your Question:
Been with my husband 36yrs.just found out he's been having an affair for the past 3 years.I have 14 yr old he hasn't acknowledged since he started the affair buys son nothing.but pays out for this woman's 3 kids.husband reckons don't need to divorce as we are only married on paper.he engaged to this person.I used to work for til he stopped giving work & money.says he doesn't have to pay me anything.I'm being mentally & financially abused by him.need some advice

Our Response:
I am sorry to hear this. If your ex is earning and not paying child maintenance and refuses to, you are entitled for support for your son and I suggest you contact the CMS via the link here. You don't say whether you own your house or whether you have any other assets between you, but these will be divided if you divorce. However, if you own the house, you also may be able to stay in it until your child finishes full-time education. I suggest you seek legal advice in order to explore your options.
CourtroomAdvice - 29-Jul-16 @ 11:41 AM
Been with my husband 36yrs .just found out he's been having an affair for the past 3 years ...I have 14 yr old he hasn't acknowledged since he started the affair buysson nothing..but pays out for this woman's 3 kids ..husband reckons don't need to divorce as we are only married on paper ..he engaged to this person ...I used to work for til he stopped giving work & money ..says he doesn't have to pay me anything ...I'm being mentally & financially abused by him ..need some advice
Lainey - 28-Jul-16 @ 1:13 PM
BillyJ - Your Question:
Hi, divorced just over 8 years ago. Post April 2003 consent order - clean break with Ex and monthly maintenance for two sons. Maintenance agreed was "to age 18 or end of full time education, whichever is later". At the time I and the ex understood 'full time education' to mean not beyond A-level.Ex is now disputing this and says expects to get child maintenance paid to her if the lads go on to University (which they probably will). I want to support my sons through Uni, but cannot afford to do so if I still have to pay the child maintenance to her as well.I have looked at CMO, and that says child maintenance stops post A-level, and I know I can apply to use that service to vary the existing consent order. But, is there a deadline to do this by? Eldest will finish A-levels in Sept 2017, youngest in Sept 2019 so do I need to apply before Sept 17? If I apply now it means the Ex will lose about half of what I'm currently paying her.Thanks for your help.

Our Response:
While you are correct in assuming you can legally stop paying child maintenance when your children leave full-time approved education prior to university. Your ex can apply through the courts for you to continue paying, or you can come to a family-based agreement, or one through the CMS. If it goes to court, or via the CMS, your sons' financial needs, and your ability to pay and whether (despite student loans) your children have a genuine need for financial assistance will all be considered.
CourtroomAdvice - 8-Dec-15 @ 12:43 PM
Hi, divorced just over 8 years ago. Post April 2003 consent order - clean break with Ex and monthly maintenance for two sons. Maintenance agreed was "to age 18 or end of full time education, whichever is later". At the time I and the ex understood 'full time education' to mean not beyond A-level. Ex is now disputing this and says expects to get child maintenance paid to her if the lads go on to University (which they probably will). I want to support my sons through Uni, but cannot afford to do so if I still have to pay the child maintenance to her as well. I have looked at CMO, and that says child maintenance stops post A-level, and I know I can apply to use that service to vary the existing consent order. But, is there a deadline to do this by? Eldest will finish A-levels in Sept 2017, youngest in Sept 2019 so do I need to apply before Sept 17? If I apply now it means the Ex will lose about half of what I'm currently paying her. Thanks for your help.
BillyJ - 7-Dec-15 @ 5:10 PM
i need some advice my ex husband. keeps taking me back to court every year . and threatens it if i dont do what he wants on the court ordershim and his wife bend the court order to suit them for my childrean i have 6 kids 3 live with him and 3 live with me and they keep breaking the order ... my son is 14 yrs old coming 15 soon andhe keeps running away to me and my ex keeps ringing the police and now wants to do a dna testwhich i knew he would be he knows the 14 yr isnt his i was 6months pregant when we meet.. how do i protect me and my children from constant abuse the childrean spend there saturday getting covered in head lice and are not proplely cared for.. two of my boys the eldest two have had to injures that have lead to having them in threatrewhich i wasnt involed forim at a loss on how a couple can get away with so much abuse and still take me to court my ex and his wife have lied repreatly in court and yet he was fined 10.000but that still hasnt stoped him being abusive to me or my childreani cant afford to go to court now legal aid has stoped.. ive rang child services all the time to get the childrean checked but they say every thing fine .. which clearly things are not .. any advice is welcomedbut ringing and ringing child servicesoh thy will get bored .and have to do somthingdoesnt work .. so any other advice please
sammy - 10-Nov-14 @ 6:02 PM
I was subjected to 22 years of domestic abuse (psychological, physical, emotional, financial and sexual).The divorce lawyer I had said to give him the divorce he wanted on a 2 year separation and there was no mention of what he did to me.You can imagine he was just as bad with his financial disclosure as well during proceedings. He sold assets (Lloyds TSB shares, wrote off the family car, did not pay all the maintenance for our child.He was also having an affair but she did me a favour. My ex has taken me back to court as I did not put the house on the market.This was due to my severe depression.I have attempted suicide twice because of the low self esteem because of the domestics abuse.I found out last year my brother is terminally ill with cancer.My elderly mother who is 92 years old has been falling over of late.She has been living with me in the matrimonial home since 11 January 2013 because she unsteady on her feet and the rest of my siblings are happy for her to stay with me permanently if needed.She has not given up her warden aided flat as yet.She was a very independent women and so giving her flat up will be hard for her but I know she would prefer to live with me then in a nursing home which would cost the government a fortune.I have disabilities a and cannot work. When we went back to court on the 21 February 2013.The original district judge who did the Final Hearing on the 14 October 2011 is residing on this case and I am not very happy.She is really against me.I can understand as this is contempt of a court order which I genuinely did not mean to breach but I am now paying the price in this judges hands. At the finally hearing my ex told the court on oath that he and his then mistress was splitting up and gave false allegations that me and our son was harassing them which couldn't a further from the truth.He is wanting 14 months @ £600 rent which he and his partner who was his mistress paid together.He is also claiming I did not hand over the items which were attached to this court order. Some of these were not available and my then solicitor knew they were available either as I told her months before the Final Hearing.Furthermore, the items that were available I was not prepared to let him near the house because of the physical abuse he put me and our son through.The police were in agreement that he was not to call at the house without a police escort.I suggested a friend collect them for him but this was not good enough for him.He was awarded 16% and I was awarded 84% of the matrimonial home.The house was valued at £130,000.He wants to claim another £15,000 on top of this and it looks as if the judge might give him his pound of flesh.I think I have suffered as it is being a victim of domestic abuse.She is also ordering that the solicitor that I have acting for me has the proceeds of the sale of house.By doing this she will leave me homeless, with my son and my mother.S
Monty - 10-Mar-13 @ 7:55 PM
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