How Many Overnight Stays Affect Child Maintenance?
Although the Child Maintenance Service uses a mathematical formula to calculate child maintenance many parents prefer to negotiate child support and want to know how overnight stays affect child maintenance.
In this article, our North West family law solicitors look at how overnight contact affects the amount of child support under the Child Maintenance Service rules. However, child maintenance solicitors who are negotiating child maintenance on behalf of parents don’t have to stick rigidly to the CMS rules as a parent may want to agree to child maintenance payments as part of an overall divorce financial settlement and parenting arrangement.
For family law advice call our team of specialist divorce lawyers or complete our online enquiry form.
Equal day-to-day care of a child
There is no child support liability under Child Maintenance Service rules if there is shared equal parenting. That’s the case even if one parent earns double or triple the amount of the other parent.
If the parents are married the court can order spousal maintenance. The court can also award the lower-earning parent more equity in the family home to help them rehouse themselves. The parents can also negotiate and agree that child support will be paid despite the child’s care being shared.
If parents are unmarried the court cannot order spousal maintenance. The court also cannot divide the equity in the family home in a way that it thinks is fair in an unmarried parent property dispute. Instead, the court must use property and trust laws when working out how the equity in an unmarried property dispute will be split or the judge can use Schedule 1 of the Children Act to provide a home while the children are dependent.
When the court is asked to make a child arrangement order and one parent wants equal care and the other parent is opposed to shared parenting the court makes its decision based on its assessment of what contact arrangements are in the best interests of the child rather than purely on the impact of overnight contact on child support.
The impact of overnight contact when care isn’t equally shared
Under the Child Maintenance Service rules if a parent has overnight contact their child support liability is reduced as follows:
Overnight contact Reduction in the amount of child support
52 nights per year 1/7th
104 nights per year 2/7ths
156 nights per year 3/7ths
175 nights per year 50%
The overnight contact rule throws up some odd consequences. A parent can look after their child all day but they don’t get a reduction in their child support payments unless the child stays overnight with them.
The overnight contact is calculated by reference to a year rather than a week or month as a shorter period might give a misleading picture. Parents should keep a record of overnight contact if they are concerned that the annual amount of contact might tip over into the next level of reduction in child support. That way there is some evidence if there is a dispute. If you have more than one child and there are different overnight contact arrangements you need to record both arrangements.
The annual overnight contact figure includes holiday contact. That applies whether the parent takes the child away on holiday or stays at home on a staycation.
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What does child maintenance cover?
Child maintenance is meant to cover the cost of caring for a child. That isn’t just the child’s food and school uniform costs but also a share of the cost of housing (mortgage or rent), heating and all the associated household expenses, such as water rates or TV licence.
The Child Maintenance Service doesn’t work out a fair division of the cost of caring for a child. Instead, it uses its mathematical formula. Parents paying child support and parents receiving child maintenance often perceive this formula as unfair and very arbitrary.
For example, a mother looking after a child as the primary carer has the same monthly mortgage payment whether her ex-husband has overnight contact on 155 or 157 nights per year but his having two extra nights of overnight contact a year could make a big difference to the amount she receives in child support and to her ability to pay her bills.
Likewise, a father who only gets to see his children on 103 nights per year as his ex-wife has moved hundreds of miles away still has to pay for a house that’s big enough to comfortably house the children when they come to stay with him. The father will still be liable to pay child support even if he is the lower earner and even though he didn’t agree to his ex-wife’s decision to move away with the children.
Although child support is meant to cover all the things children need, child maintenance lawyers are frequently told that a parent objects to paying child maintenance because the money given as child support appears to be being spent on the receiving parent’s clothes and activities and not on the children. There is no requirement for the receiving parent to provide evidence that the child support payment is being spent solely on the child and their living costs.
What things affect child maintenance?
The amount payable in child maintenance isn’t just affected by the level of overnight contact. If the paying parent decides to make voluntary extra pension payments this reduces their gross income on which the child maintenance calculation is made. That policy seems to prioritise long-term retirement goals over the child support needs of children.
Other criticisms of the child support system include the deductions allowed if a paying parent has other children living in their household. The rigid formula approach takes no account of the fact that the parent receiving child support can end up with a sudden reduction in child maintenance because of family decisions made by the paying parent.
Negotiating child maintenance
Most family lawyers see the child maintenance formula as a useful starting point. If parents want to negotiate child support so the figure is higher or lower, the child maintenance solicitors‘ focus should be on ensuring that the agreement reached is fair and workable. That involves reality testing your divorce financial settlement so you know that the full financial deal stacks up from the share in the equity in the family home to the split of pensions and of course spousal maintenance and child support. Your agreement then needs to be incorporated into a binding financial court order so you can enforce it if necessary.
For family law advice call our team of specialist divorce lawyers or complete our online enquiry form.
