Advice on Divorce

[Letum911]

Hi All.

Does anyone know the legalities of what I would need to do regarding maintenance if I were retrenched or my salary drastically cut which has already happened this month despite using the little leave I had accumulated in the relatively short time at my current employment.

 

Does one approach the court directly or do you negotiate a way with your Ex rather with or without a lawyer involved.

Appreciate and ideas.

 

You will have to approach the maintenance court asap to reduce the order. If you make an arrangement it is not sufficient and she can actually open criminal cases as well as proceed with execution processes irrespective of an agreement in place.

[Harryn]

You will have to approach the maintenance court asap to reduce the order. If you make an arrangement it is not sufficient and she can actually open criminal cases as well as proceed with execution processes irrespective of an agreement in place.

No.

 

Negotiate first. Always. Run to court as last resort.

[Letum911]

No.

 

Negotiate first. Always. Run to court as last resort.

 

Just my point of view. Had a matter in Kemptonpark Mag Court (criminal division)  Nov 2018 where the parties had an agreement that the father will pay less for a year in order to stabilize his financial position after his employer was liquidated and he had to obtain new employment. 

 

Effect was that in accordance with the order he had to pay R6k p/m, he only paid R3k p/m, fell into arrears with just over R30k, mother fell on financial hardship and approached an attorney, criminal charges was filed and the Magistrate held that there is an order in place that he needs to pay, no agreement can stop the working of an order, client was given 30 days to settle arrears alternatively criminal trial will proceed. 

 

Insofar as I am aware the Maintenance act has not changed iro an order being amended by an agreement inter partes without ever approaching the court, but I do very little maintenance these days. 

 

*Edit: Just to add, the Magistrate took the stance iro non compliance with a Court order and specifically so that no attempt was made to advise the Maintenance Court of his change in circumstances and to lower the amount. 

Edited April 26, 2020 by Letum911

[Captain Fastbastard Mayhem]

Just my point of view. Had a matter in Kemptonpark Mag Court (criminal division)  Nov 2018 where the parties had an agreement that the father will pay less for a year in order to stabilize his financial position after his employer was liquidated and he had to obtain new employment. 

 

Effect was that in accordance with the order he had to pay R6k p/m, he only paid R3k p/m, fell into arrears with just over R30k, mother fell on financial hardship and approached an attorney, criminal charges was filed and the Magistrate held that there is an order in place that he needs to pay, no agreement can stop the working of an order, client was given 30 days to settle arrears alternatively criminal trial will proceed. 

 

Insofar as I am aware the Maintenance act has not changed iro an order being amended by an agreement inter partes without ever approaching the court, but I do very little maintenance these days. 

 

*Edit: Just to add, the Magistrate took the stance iro non compliance with a Court order and specifically so that no attempt was made to advise the Maintenance Court of his change in circumstances and to lower the amount. 

Eish. Would it not have been easier to reach an agreement and then make it official with the court, by way of an addendum of sorts?

 

I fully respect the ex's desire to get what has been decided on in the order, but IMO unless there was delinquence or a flat out denial of paying the arrears, it's a bit of a d1ck move to get the courts involved and criminal proceedings against the other parent. 

 

For context - I've seen what something like that can do to someone who is literally on the bones of their ass. A friend of mine used to have the police at his door if the maintenance payment was a couple days late, thanks to his ex calling them. 

Edited April 26, 2020 by Captain Fastbastard Mayhem

[Mudsimus]

No interpersonal agreement supersedes a court order.

[Harryn]

No interpersonal agreement supersedes a court order.

Cite authority for this.

[Letum911]

Eish. Would it not have been easier to reach an agreement and then make it official with the court, by way of an addendum of sorts?

 

I fully respect the ex's desire to get what has been decided on in the order, but IMO unless there was delinquence or a flat out denial of paying the arrears, it's a bit of a d1ck move to get the courts involved and criminal proceedings against the other parent. 

 

For context - I've seen what something like that can do to someone who is literally on the bones of their ass. A friend of mine used to have the police at his door if the maintenance payment was a couple days late, thanks to his ex calling them. 

 

Is a d1ck move I agree. And the state refused to withdraw the matter irrespective of the complainant and Accused reaching an agreement. Was a nightmare indeed!

[Letum911]

Cite authority for this.

 

I tend to agree with Mudsimus, you cannot supersede the working of a court order by an agreement inter partes.

 

However will have to check whether there is caselaw on this. 

[Harryn]

Look.

 

Scenario 1.

 

Mr and Mrs Landy talk.

Mr explains the circumstances.

Mrs understands.

They agree to a temp reduction until Mr‘s earnings are back to normal.

They encapsulate the agreement into a simple one pager, which they sign - or even exchange confirmatory emails.

Non variation clause thus complied with.

provided Mr Landy keeps to the new deal, there is no need to blow money on lawyers or court.

(The children need the money more than the lawyers.)

 

Scenario 2

 

Mr explains the circumstances.

Mrs throws her toys.

They mediate.

Mediation fails.

Court.

[Mudsimus]

Cite authority for this.

The court must ensure that any changes to the court order is in the best interest of minors involved. They will also decide on the increase or reduction.

[New Landy new life]

The thing is that my ex is an essential worker and will never loose her salary. I on the other had have been reduced this month but am still able to afford full maintenance. Next month we are on no work no pay so that could be dismal for me. Is the court still contactable next month and how would you provide details based on only billable hours to a client will be paid to us as salary. Bit of a difficult one.

[eddy]

The thing is that my ex is an essential worker and will never loose her salary. I on the other had have been reduced this month but am still able to afford full maintenance. Next month we are on no work no pay so that could be dismal for me. Is the court still contactable next month and how would you provide details based on only billable hours to a client will be paid to us as salary. Bit of a difficult one.

In respect of whom are you paying maintenance, your ex or a minor child ?

[New Landy new life]

19 year old who is working.

[Honkdonk]

Was waiting for this to crop up in light of the current situation..

 

I've lost every single bit of work for the foreseeable future as a result of this Corona pandemic and its not like I had a stash of cash saved for a rainy day. At least I don't owe on a car, bond, overdraft, loan etc, but not having any form of income until who knows is a cause for concern.

I'm a self employed subcontractor and its a very scary position to be in to put in mildly..

 

My kids live in New Zealand and I pay maintenance into her SA account, (but that's about to change) and the split cost amount in Kiwi$'s into her NZ bank account. She has offered for me to forfeit my maintenance payments for 3 months in lieu of the plane ticket she covers to get me over to NZ once a year to visit the kids as per our settlement agreement. Like the banks here - any payment holiday comes at a price.

 

Once again there are no winners in a divorce, especially when the great virus of 2020 has struck

[Captain Fastbastard Mayhem]

crap, HD. That's sucky, but better than the alternatives IMO. Much better than some arrangements I've seen and heard of with uncompromising exes. 

 

 

Not related, but related to your closing line. 

 

Yesterday, walking my son back to his mom's place (2km away) I had him on my shoulders for some of the walk, and when I moved to put him down, he started panicking uncharacteristically. I asked him what was wrong, but deadpan. Nothing. So we stopped, and I tell him that it's polite to answer someone when they ask you a question. Nothing. So I change tack, and ask him why he panicked when I was taking him off my shoulders. Nothing. I then ask if he was scared I'd drop him. A little nod. Okay. Not the answer I'd wanted, but let's carry on. "why did you think I'd drop you, my boy? I'd never do that"

 

Cue full tears. "but you just left". My jaw goes stiff from me clamping it shut. Spend the next 10 minutes explaining that I'll never leave him. 

 

Absolutely flippin gutted. I don't know WTF the ex has been saying to him these past 2 1/2 years, but my son was scared that I'd leave him. 

[Honkdonk]

Damn that made me cry..