Maintenance matters Part 2 by Nina Mensing (mediator)

  1. What is maintenance and how it is calculated:

All children have a right to be financially supported by both parents. Maintenance is something that has to be negotiated and agreed on in every divorce, or separation, when there are children involved. Contrary to popular belief, maintenance is not a 50/50 split between the parents. It is a little more complicated than that in order to ensure fairness, and above all, to ensure that the child/ren get the necessary support until they are old enough to support themselves. These days maintenance for children is termed maintenance, and if in certain cases there is maintenance paid over to an ex, that is termed ‘spousal maintenance’. This article will cover maintenance, so specifically for any children involved.

Maintenance should be paid up until a child is self-supporting, within reason. Once a child turns 18 they are deemed an adult, and have to claim maintenance themselves, as their parents cannot claim for them from each other. A step-parent is not required by law to contribute towards a child. If a parent is unable to contribute, then a claim can be made against the grandparents.

A very important point to remember is that maintenance and contact are entirely separate issues. Maintenance is not only granted and paid when there is equal access to the child, and similarly children cannot be kept away from their other parent if maintenance is not being paid. Maintenance matters need to be kept between the parents, and not affect the child’s right to see both parents.

There are many parents who work out what their expenses are, what they can afford, and then come to an agreement as to who pays what. This is entirely feasible and if parents can come to an agreement in this way, all the better. Maintenance is included in a divorce decree, but if one is not divorcing, it is advisable to take the maintenance agreement to court in order to make it a court order. If a parent stops paying maintenance, one only has recourse to apply for arrears if the agreement was made a court order.

If parents find it difficult to come to an agreement, one can calculate maintenance in the following way, either with each other, or with the help of a mediator or attorney:

Calculate the expenses of both households, according to how much time the child spends at each house. Include indirect costs such as rental/bond, electricity, internet access and others. For indirect costs such as rental, it is worked out on a 1 part per child, 2 parts per adult equation. There will also be direct costs for the child such as education, medical aid, activities, clothing and suchlike.  Once the child’s costs have been calculated, the parents then work out a percentage-based contribution that each will make, according to their separate incomes. In laymans terms, if one parent earns twice as much as the other parent, then they will pay twice as much towards the child’s expenses.

Maintenance is easy enough to work out if both parents earn a stable income, and their expenses are separate. It can become complicated when parents have various businesses and interests, earn on commission, and have very different expenses. The help of a third party may be necessary in order to help calculate what would be necessary and fair for the child. One can claim interim maintenance via the Rule 43 whilst the divorce is being finalized, if assets have not been sold yet and settlement has not been paid out. Often once settlement has gone through then it becomes easier to calculate, as finances between the parents are separate. If a parent moves to another city or another country, it is important to include the cost of travel into the calculations.

In the next article I will explain how to apply for a maintenance order, how maintenance can be paid, and important points to include in a maintenance order.

For support and help on maintenance matters join the Facebook group Child Maintenance Difficulties in South Africa

2.  How to apply for maintenance or an increase

There are various ways to apply for maintenance. Obviously firstly the parents, in the interest of cooperative co-parenting, can come to an agreement as to how they are both going to live separately and who is going to pay for what. This is the most mature way of doing it, but unfortunately often does not happen. Too many people have the false information about how to work this out, or get influenced by well meaning friends and family. The usual and used preconceived idea that “she is going to use this money to have her nails done” is still unfortunately widely believed. Just a few weeks ago there was a You magazine article on the ex partner of FW de Klerk’s son. She was telling her story about battling to get him to pay maintenance. The comments after the article almost made me cry. Women against women, stating that if she can afford to have her nails done (and yes she had beautiful nails in the attached photo) then she should not be complaining. Reallly? It perpetuates the argument that one has to be hard done by, to the point of not being able to sometimes spoil oneself or be able to do ones own nails, before one can claim maintenance from the other parent! Maintenance is about the children, and keeping them in as much the same economic circumstances as they are used to. Hence my previous article explained how to calculate maintenance – in a percentage based formula dependent on the parents independent incomes. If a parent can only afford R50, then R50 should be paid toward maintenance. If a parent can afford R50 000, then R50 000 should be paid towards maintenance. This money is for the children’s expenses.  Different children cost different amounts, even within the same family. One child may have special needs; one child is 3 years old and one child is 17 years old, thus different needs. You get the idea.

So how to claim maintenance? Once it has been agreed upon, whether together, through mediation or litigation, one then need to make the agreement a court order. This is vital, as without a court order one cannot claim arrears. Go to your nearest Family Court, and fill out a J101E form. You can download it from the Department of Justice website, or get one from the court. The court officials will help you through the process. Alternatively if you are going through a divorce then the maintenance order will be made part of the divorce order.

It is vital to remember to add in a yearly increase for maintenance, stating the month of the year that this increase should be implemented. You do not want to go back to court every year as costs go up. It is also a good idea to put a clause into any agreement/divorce order that both parties agree to go for mediation if anything cannot be agreed on in further claims. Children grow up, school fees change and increase, they may change schools, extra mural activities are added or dropped, expenses change. These things need to be realized by both parties, and so maintenance orders need to be adjusted over time. Mature and responsible parents will be able to negotiate this and adjust the order over time. Unfortunately it just takes one irresponsible parent, whether it be one taking advantage or one not paying, to create a very difficult situation that then might need mediation or an application to the courts to get the order amended.

When applying for the first time through the courts, or for an increase through the courts, one needs proof of expenses and income. Remember to keep invoices and proof of payments as far as possible. Bank statements can also reflect a consistency of monthly expenditures. This applies to both parties. Too often the court officials believe the parent against whom the application is made against – you need to empower yourself, know your rights and remind the court that they also need to supply proof of income and whether or not they can afford it.

One can apply for maintenance at any stage, up until a child is 18 years of age. One can apply for an increase when circumstances change, such as different expenses or if a parents’ income changes. One can also apply for a decrease if ones circumstances change. However one cannot apply for a decrease to a maintenance order if one has willingly left a job.

In the next article I will write about what to do when maintenance is in arrears, and what happens when the child turns 18.

For support and help on maintenance matters join the Facebook group Child Maintenance Difficulties in South Africa

 

Reduced rates available for the remainder of April 2016

Please contact Nina Mensing:

www.familymattersmediation.co.za

nina@familymattersmediation.co.za

Tel: 082 458 8044

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