What is the 12 month “opt out” rule in child maintenance?

The court’s powers to assess child maintenance were removed some years ago by the legislation which created the Child Support Agency. Basically the government’s policy was to take questions of child maintenance away from the courts and leave to the Child Maintenance Service (previously called the Child Support Agency) the decision-making in disputes about the amount of child support which should be paid. There are a couple of exceptions, but generally speaking, since 1991 the courts’ power to make a child maintenance order has been limited to rubber-stamping an agreement made by the parties.

The 12 month “opt out” rule is that where a court has made an order for child maintenance after 3rd March 2003, either party can opt out after 12 months and instead have the maintenance assessed by the Child Maintenance Service

So if you can opt out, why bother with a Court Order?

There may be reasons why you want an agreed maintenance order. It is important to take advice before deciding.

For example:-

• If one of you lives abroad or may be going to live abroad and the CMS will not have jurisdiction there;

• Some mortgage lenders like to see maintenance in a binding form such as a CMS assessment or a court order and you don’t want to go through the CMS process;

• You may want to see your agreement recorded formally rather than go through the CMS;

• You have agreed a higher amount than the CMS would assess and you want to be sure to receive that for at least a year;

• You may have agreed that school fees are to be paid. This is separate from normal child support

What happens when you opt out?

The CMS jurisdiction takes over from the court order and the court ordered maintenance lapses. You will pay the CMS amount from that point on whether it is higher or lower than the court ordered maintenance.

However you actually have to apply to the CMS, otherwise the court order remains in force.

It is important to take advice before deciding what to do. Talking to a solicitor about all these options is not an aggressive step. No amount of searching on the internet is going to be a good substitute for talking to an experienced solicitor about this.

Armed with the right information you can go to mediation or just sit and talk to your husband or wife about the best way to deal with your situation.