Can I make my out-of-work ex-husband pay maintenance?

My husband lost his job midway through our divorce and financial proceedings. We are living separately, but he has recently stopped paying maintenance, both for myself and our child. I have some savings but very limited earnings, having only recently returned to work after having children. I am worried not just about the interim financial situation and how we will meet our needs, but also about the longer-term financial picture. What should I do?

Shaili Gohil-Desai, associate at law firm Burgess Mee, says that although your husband has lost his job, if this is temporary and other assets are available, he should continue to make payments. In any event, he must set out his financial position and justify any immediate reduction in maintenance. 

You should request details of any financial exit package he received, with supporting documentation. You may look to share in any severance sum to meet your interim income needs. You should also ask about his plans for new employment.

Consider what other capital assets such as savings and investments (including your own) could be applied towards your interim income needs. If your husband is using matrimonial capital to fund his income needs, you should have access to the same pending overall resolution of the financial aspects of your divorce.  

You can also apply for interim maintenance via a maintenance pending suit (MPS) order, known as spousal maintenance in Scotland. The court will consider whether the order is reasonable and fair by adopting a relatively broad-brush approach. However, the potential cost of this application against the likely benefit can be finely balanced. Non-court dispute resolution such as mediation must be considered before making an application.

The group in charge of setting the amount payable for ongoing childcare is the Child Maintenance Service (CMS) and the amount payable depends on the paying parent’s gross income and the number of overnight stays your child has with them; the CMS has an online calculator to facilitate agreement.

If your husband refuses to pay, you should apply to the CMS, as payments will only be backdated to the date of your application. If your husband has no income, the CMS will make a minimal assessment, so contact them once he is earning again.

You may also be eligible to apply for state benefits, depending on the capital in your name and your current level of earned income.

Longer term, the court will assess whether you can transition to independence without undue hardship in the absence of spousal maintenance. The court can make orders for your joint lives, a set term or (less frequently) a nominal amount. The amount depends on your income needs, the shortfall in your own income and your husband’s ability to pay.

Even if he has lost his job, an earning capacity may be ascribed to him by the court on the basis that he is likely to obtain new employment, so spousal maintenance can still be ordered. How capital and pensions are divided will depend on several factors, including your husband’s income (or earning capacity) and to a limited extent his mortgage capacity, for example.

In addition to seeking advice from a solicitor on the most appropriate way forward, you should consider consulting a financial adviser on other options available, such as liquidating capital assets or taking a mortgage holiday. You may also be able to apply for a litigation loan to meet your legal fees or, failing this, for an order that your husband should pay your legal fees.

What is the best way to make a will?

A friend of mine is currently having to deal with a relative’s affairs who died intestate. On top of grieving, she’s having to deal with mountains of paperwork. I don’t have a will in place, but don’t know where to start. Do I need to hire a solicitor to make sure it stands up legally, and what’s the best way to leave money to charity? 

Sam Grice, founder and chief executive of Octopus Legacy, says the trickiest part of writing a will is just getting started. As a first piece of advice, I’d recommend considering what you want to leave behind. 

When someone you love dies without a will — known as dying intestate — it can be tough. Their assets will be divided according to intestacy laws — this works for some people but not for everyone. It can be expensive (£9,700 on average once all the costs are factored in), time consuming, and stressful — all when you need it the least. This is something I sadly had to find out the hard way after my mum died, so I feel for your friend.

In terms of putting your own plan in place — you don’t have to hire a solicitor. Technically, in the UK someone could write their wishes down on a piece of paper, then sign it in the presence of two witnesses and, as long as they’re over 18, and have mental capacity, this would be a valid will. However, this DIY method isn’t recommended.

If you’re looking for a simple will you can write your will online via companies such as Farewill, over the phone, or in person. Technology has changed the game and means that you don’t even need to leave the house, and there’s also the scope to include personal messages and funeral wishes too.

If you’re looking for something more complicated, such as a will with a trust then you’ll likely need to go to a will provider with a team of solicitors.

In terms of leaving money to charity: you can leave a specific sum, a percentage of your estate, or what’s known as a “residuary gift”, which is whatever is left after other gifts are made. It’s important to name the charity in your will and provide its registered charity number, which you can usually find on the charity’s website. 

If you’re looking for an easy route to writing your will, it’s worth noting that Free Wills Month runs twice a year, in March and October. Many charities and organisations partner to provide free will writing services and many people choose to include a gift to the charity as a thank you, but there is no obligation to do so.

The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.

Do you have a financial dilemma that you’d like FT Money’s team of professional experts to look into? Email your problem in confidence to [email protected].