Can the Child Maintenance Service (CMS) request more maintenance than agreed within a Financial Remedy Order ?

[Peter B]

This is a tricky situation, here's the breakdown of how Child Maintenance Service (CMS) calculations interact with Financial Remedy Orders

Generally, No - But There Are Exceptions

• 12-month Rule: A Financial Remedy Order typically includes a clause about child maintenance. However, after 12 months, either parent can approach the CMS to calculate child maintenance. If this happens, the CMS calculation overrides the amount in the order.  
• Why this exists: It's a safeguard to ensure children's needs are met even if circumstances change significantly.

When the CMS Can't Intervene

• "Top-Up" Orders: If the court order specifies a child maintenance amount higher than the CMS would calculate, the CMS cannot get involved. This is often done when complex financial situations exist.
• Specific Circumstances: There are rare cases where the court might make a child maintenance order that's specifically designed to be outside the CMS's jurisdiction. This is unusual and requires strong justification.

What if the CMS is Asked to Calculate?

• Potential for Increase: If the paying parent's income has increased significantly since the Financial Remedy Order, the CMS might calculate a higher amount.
• Not Always Higher: It's also possible the CMS calculation could be lower than the agreed amount, depending on circumstances.

Important Considerations

• Variation of Orders: If circumstances change significantly, it's possible to apply to the court to vary the original Financial Remedy Order. This is separate from the CMS process.
• Legal Advice is Crucial: If you're facing a situation where the CMS might be asked to calculate, or if you want to vary an existing order, get legal advice from a family law specialist.

If your ex is trying to use the CMS to increase the child maintenance payments you should

• Check your Financial Remedy Order: Does it have a standard child maintenance clause, or is it a "top-up" order?
• Seek Legal Advice: A solicitor can advise you on whether the CMS can intervene and what your options are, including potentially varying the order.

It's important to act quickly and understand your rights and obligations.

Sources and related content

• https://www.kingstreetsolicitors.co.uk/understanding-financial-remedy-orders/
• https://www.thedivorcesurgery.co.uk/child-maintenance-calculations-and-the-cms/#:~:text=Any such Order would only,CMS for an updated assessment.
• https://www.thefamilylawco.co.uk/blog/children/what-you-need-to-know-about-child-maintenance/#:~:text=Whatever sum the CMS stipulates,Q.

Edited October 26, 2024 by Peter B