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Question
Posted by: TB | 2011-01-25

He is of the opinion he doesnt need to pay

Hi there - my ex-husbadn and i have a great relationship regarding our children. In the 3 years we have been divorced, we have not had major issues. Although I have full custody for the girls, we agreed that we would share their time 50-50 as we are equally good parents and they love us both. This has worked very well, but the girls are now teenagers and want to live with me only. Naturally they still want to see their dad, but teenage girls need moms!
While we were sharing, I never once took the maintenance agreed upon in the divorce agreement as i felt we were sharing costs equally. Things are now different and I feel that I am entitled to maintenance.
he refuses and says that I am doing this for financial gain. THE GIRLS ASKED TO CHANGE THE ARRANGEMENT. He has promised to tell them how pathetic i am.
What are my options - leave the maintenance? Take him to a lawyer???

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Our expert says:
Expert ImageFamily law expert

The initial court order is still in existence and as a result you will be entitled to claim maintenance, no matter whether there was an agreement between yourselves to the contrary. A divorce settlement agreement is a court order and may only be varied on application to court and by order of court. Effectively you will be able to claim the arrear maintenance in terms of that order as well. If the amount of maintenance in terms of the order is not enough you can approach the maintenance court for an increase so you will need to either see an attorney, which I advise or make an appointment with the maintenance officer at the maintenance court in the area where the children reside.

As far as the arrangement regarding the shared residence aspects concern and your intention to change this to a situation where he will be the parent of alternate residence I suggest that you see an attorney. Mediation is a good way to resolve disputes, however, can be costly and sometimes even more costly than legal fees. The other problem is that mediation is not final and binding and it happens frequently that parties opt for mediation only to find that they have to go to court ultimately if mediation fails. You have to differentiate between mediatiion in terms of the Children's Act and mediation over the maintenance dispute. These are two completely differant aspects with differant consequences. Go and see an attorney.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
E: bertus@divorceattorney.co.za
W: http://www.divorceattorney.co.za
Twitter: www.twitter/edivorce
Facebook: www.facebook.com/divorceattorneys
Skype: divorceattorney

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Our users say:
Posted by: FIO | 2011-01-31

Mediation in matters involving the child where there is a dispute is a REQUIREMENT before litigation in terms of Section 33 of Childrens Act. So technically speaking, if you are experiencing difficulties with children then you have to mediate if an agreement cannot be reached in consultation with your respective attorneys.

It is true that mediation may fail, and the process goes into litigation, which would then end up costing more. But the new Act is designed to assist parents in reducing conflict, and adopting an alternative approach to dealing with children co-operatively. Parents can still hate each other if they want, but that does not give them the right to use the child to vent their anger, hate etc. hence the provisions in the new Act.

In addition, the courts are overloaded with cases, and in some areas there arent even magistrates available to deal with cases! Again the act is trying to remove the load from the courts. But irrespective, you will still need an attorney to process the results of mediation.

Re maintenance, that you can go straight to court for, and it would be silly to try mediate theat.

Reply to FIO
Posted by: family law expert | 2011-01-30

The initial court order is still in existence and as a result you will be entitled to claim maintenance, no matter whether there was an agreement between yourselves to the contrary. A divorce settlement agreement is a court order and may only be varied on application to court and by order of court. Effectively you will be able to claim the arrear maintenance in terms of that order as well. If the amount of maintenance in terms of the order is not enough you can approach the maintenance court for an increase so you will need to either see an attorney, which I advise or make an appointment with the maintenance officer at the maintenance court in the area where the children reside.

As far as the arrangement regarding the shared residence aspects concern and your intention to change this to a situation where he will be the parent of alternate residence I suggest that you see an attorney. Mediation is a good way to resolve disputes, however, can be costly and sometimes even more costly than legal fees. The other problem is that mediation is not final and binding and it happens frequently that parties opt for mediation only to find that they have to go to court ultimately if mediation fails. You have to differentiate between mediatiion in terms of the Children's Act and mediation over the maintenance dispute. These are two completely differant aspects with differant consequences. Go and see an attorney.

Bertus Preller
B.Proc; AD Dip L Law
Family Law Attorney
Abrahams and Gross Inc.
E: bertus@divorceattorney.co.za
W: http://www.divorceattorney.co.za
Twitter: www.twitter/edivorce
Facebook: www.facebook.com/divorceattorneys
Skype: divorceattorney

Reply to family law expert
Posted by: GT | 2011-01-27

HI
One thing to consider.
You have been sharing the access of the children for a number of years now regardless the divorce agreement which is vey thoughtful of you.

Yes the girls are teenagers now and they do need more of a personal coach from a woman in certain aspects.
What is the main reason they want to live primary with you.
Is the father for more stricter with them and you give them much more freedom?
Does father have a new girlfriend or wife and the girls do not get on well with her?
If something has bee practiced for a number of years regardless of previous arrangement, the last practiced agreement will have preference as the court will/should take into consideration

Reply to GT
Posted by: FIO | 2011-01-26

No you dont need to go through original attorney, you can choose any attorney. But be sure that you choose an attorney who promotes mediation, as very few of them do because they make money from litigation, not settlements.

The attorney should draft a letter to him requesting mediation through an accredited mediator, stating that his refusal to co-operate in terms of the Childrens Act will render him open to litigation, and he will have a lot of explaining to do to a court as to why he refused mediation.

So approach an attorney with instructions for mediation. Dont let the attorney bullshit you into think mediation is not necessary or a waste of time, if the attorney does that he/she is not acting in the best interests of the children as obliged to do.

You can go to the SAAM website to find a registered mediator, or if you cant find someone in your area then check out the Institute of Family Mediators website (ifmediators.co.za) for any asistance you require. Its a new organisation and site, but have a network of attorneys, mediators, psychilogists etc at their disposal for anything you may require.

Reply to FIO
Posted by: TB | 2011-01-26

Many thanks for the response. However, our original agreement gives me sole custody - it was by mutual agreement that i allowed them to share homes. In this instance, i would like to give my daughters the freedom of choice.
He is making it very difficult and is threatening all sorts.

I will definitely follow up on the maintenance court issue - do i need to do this through my attorney and do i need to go to the attorney who originally conducted our divorce?

Reply to TB
Posted by: FIO | 2011-01-25

I would approach the maintenance court to have the maintenance reviewed and enforced.

If the girls want to live with you, they should be given an opportunity to do so. In terms of the Childrens Act, it is their right to be heard and considered with respect to situations that impact on their best interests, well-being etc. You can lodge an application with the local family court to have the original agreement amended.

However, since there is likely to be resistance from him, the court will probably instruct you to go for mediation, and this is what is required by law.

I suggest you first take the girls for indepepndent assessment by a psychologist recognised by the courts and the Office of Family Advocate. Based on the report/s request mediation. If mediation fails, or he refuses to mediate, then you file an application to amend the priginal agreement based on the recommendations in the report.

Because this will take time, you should still go to Maintenance court now to review maintenance arrangements, and pending the outcome of the new living arrangements application you would then be able to approach the maintenance court again to have the maintenance reviewed to reflect the new living arrangements.

Lawyers are obliged to act in the best interests of the child, but sadly not many do this yet, so they try conciliation themselves and generally let the matter go to court. This is costly, time consuming, and always negatively impacts on the children. Mediation does the opposite - it focusses on findiing solutions to suit all parties, but most importantly for the well being of the children. Mediation is quicker, cheaper and focussed on conflict avoidance as opposed to litigation which promotes conflict.

So, best thing to do to cover yourself and your children, woudl be to try mediation. Failing that approach the court, and do so with costs if the failure of mediation is due to father. Sometimes it works.

Reply to FIO

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