Legal issues after divorce

Whilst it is possible to vary a court order it is not always easy to do so. Generally, a final order from the court is considered final however, the courts do understand that situations change and what had originally been ordered may no longer be appropriate. 

In deciding whether to make any changes, the needs of the ex-spouse and any dependent children will be the primary consideration. 

Applications to vary an order are most commonly seen in relation to orders for spousal maintenance but there are other aspects that can be varied in certain situations e.g. lump sum orders that can be amended, needing more time to pay, getting a property sold or transferred.

You can apply to the court to vary spousal maintenance but they will generally only consider an application if there has been a significant change in circumstances. 

For example,  the person paying the money is no longer able to work due to ill health or has lost their job or the person receiving the maintenance has secured a well-paid job or the children have left home and the financial support required has reduced if not fallen away altogether. 

A judge can vary the maintenance order up or down, suspend the maintenance or stop it altogether and give effect to what is called a “clean break”. A judge may also make an order to capitalise the maintenance so rather than receiving a monthly amount instead a one-off lump sum capital payment may be ordered.

All these options can be negotiated as well and resolved by agreement. 

Child maintenance is generally governed by the Child Maintenance Service. If they are involved, and there has been a change of circumstances, they should be contacted and asked to review the situation.

If the final court order refers to child maintenance being payable it can be varied in a similar way to an order for spousal maintenance (as explained above) albeit only in very limited circumstances.

Yes, you can make changes to a child arrangements order. For example, as children get older it is possible that the arrangements that were in place for them when they were young children are no longer appropriate. 

As with any proposals to change an order, the first option should be to discuss the changes with the other party to see if an agreement can be reached amicably. If that is not possible, mediation or collaborative family law are excellent options to help couples to reach a resolution. 

If an agreement cannot be reached then an application will be made to the court to reconsider the order and what is in the best interests of the child (ren).

If the children live with one parent, the “primary carer” (PC) and the children have contact with the other parent, the “non-resident parent” (NRP),  it is often assumed that should the primary carer wish to relocate, then the children will be relocating with them and that this cannot be challenged. 

However, this is not the case. A parent does have the right to try and stop the other from moving and can seek a court order to prevent the other parent from relocating with the children. 

The first step when a parent wishes to relocate is for both parties to try and reach an agreement between themselves. If possible, this avoids the need to go to court and the potential upset this can cause. 

However, the relocation of children, especially outside the jurisdiction (a different country), will inevitably have a huge impact on the contact that one parent will have with their children and so an agreement between the parties is not always possible. 

If an agreement cannot be reached, then an application to the court will be necessary to obtain approval to relocate with the children. Alternatively, the parent that is opposing the removal of the children can make an application to the court to prevent the relocation.

The party that wants to move away will need to demonstrate that the move is positive for the child and that there will be a suitable place for them to live, that there is no interruption to education and how the child can keep in touch with the parent that has been left behind.

Can my ex stop me moving away with my children?

Perhaps needless to say but if you were married before then your marriage needs to have been legally dissolved (divorce) or annulled before you can remarry. 

If you haven’t obtained a final financial order from the court dealing with the finances of that marriage and you decide to marry again this can have important implications on your financial settlement. 

In getting remarried you will be prevented from applying to the court for a lump sum, property adjustment or spousal maintenance from your former spouse. This is what is known as the ‘remarriage trap’.

It is important therefore that you resolve the financial arrangements from your previous marriage before you remarry. If you were hoping to receive or are in receipt of maintenance payments it is also important to remember that remarriage brings those maintenance claims to an automatic end.

Any implication will depend on when the money was received and whether you already had a final order from the court in place. If a final order is in place it will be difficult for your ex-spouse to make any claim against it.

If you do not have a final order and the money is received post-separation then there is certainly an argument that the money should be ring-fenced as it has been acquired following the end of the marriage. Inheritance, in particular, is something that the court will tend to try and keep separate. 

However the court’s primary consideration is based on the financial needs of both parties and if there is not enough money to go around and set the parties up again, inheritance money could be used to assist.

If the money was received pre-separation and has been intermingled with the family finances,  then there will be more of an uphill battle to argue that the funds should be separated.