You can ask our online solicitors for advice on spousal maintenance using the question box on the front of our website or the following free legal advice guide may answer your questions.
Divorce brings with it a number of obligations, even after a couple separate and the divorce is finalised. One of these includes what is known as spousal maintenance. During divorce proceedings, it’s important that a financial settlement between the ex-couple is organised. It may be established during the course of the divorce that one partner is liable to the other in terms of regular payments which are known as spousal maintenance.
Spousal Maintenance Explained
This type of maintenance is usually put in place as part of a larger divorce settlement. This financial settlement will require the couple to individually and collectively review their finances including income, assets and property and decide how they will be divided.
Spousal maintenance is payable in addition to child maintenance and is often payable when one spouse has insufficient funds to support themselves.
There are many situations where spousal maintenance is payable, perhaps it is paid when a spouse has given up their career to take care of children or look after the family home. In these instances, the partner may be entitled to receive a regular payment from their former partner.
Spousal maintenance is not usually paid when both partners have a similar income or they do not have children. If a couple have significant savings that will be divided equally as part of the divorce settlement, spousal maintenance payments will not be necessary. In this instance, one partner may give the other a lump sum payment instead using what is known as a clean break agreement.
This lump sum would be a full and final payment and if agreed, the spouse would not be able to make any future claim for financial reasons against the other spouse. In addition, if a spouse in receipt of the maintenance payments remarries, the payments will stop.
Spousal maintenance payments may also be made on a temporary basis or longer term in order to help the financially weaker partner over a period of time in order to support them while they become more financially stable.
When it comes to calculating spousal maintenance payments, there is no definitive way to reach the required sum. It’s calculated differently to child maintenance. Each case for spousal maintenance will be calculated based on the individual circumstances of the parents.
This will include the income and expenditure of both partners. The judge will gather all the information they need and review financial details to reach an arrangement with the couple on how much spousal maintenance is payable.
The financial situation of the partner paying the maintenance will also be taken into consideration too. This will ensure that the payments are fair and does not place the partner in financial difficulty. The process of calculation for the maintenance payments will be based on the following criteria:
- The requirements of each spouse including information such as who cared for the marital home and children and whether either spouse took any career breaks as a result.
- The level of income for both parties including the amount of spousal maintenance that would be required to prevent financial hardship.
- Where a couple have significant wealth, consideration will be given to whether a spouse made any investments or sacrifices throughout the marriage which should be factored into the calculation.
- The total earnings made to date and the earning potential and whether one spouse supported the other in their career.
- The standard of living that the couple had during the marriage. That said, even though a judge will take into consideration the standard of living, it would be unrealistic to expect spousal maintenance to cover this standard after the marriage ends.
It is strongly recommended that a couple going through divorce talk these matters through and reach an agreement that is beneficial to both parties including the amount of spousal maintenance that is paid. This is always preferable to lengthy court proceedings in an attempt to resolve the matters.
Divorce solicitors are specialists in this area and the couple can be properly supported in reaching these decisions.
Solicitors are particularly skilled in this area and will be able to provide in depth advice and guidance on how the spousal maintenance payments work and assist couples to reach a mutually beneficial arrangement. If an agreement can be reached amicably, the solicitor will arrange for a draft document to be created.
The court will then review the document and make it legally binding in a consent order.
Types of Maintenance
Spousal maintenance can be arranged for a number of different areas:
Joint lives – A type of maintenance that is open ended where payments will continue indefinitely until the court reviews the situation and states that it is no longer necessary to continue the payments. This type of payment is usually arranged for older couples who have been married for a number of years or where one of the couple takes care of children.
Term maintenance – When this maintenance system is used, the payments will continue for a specified period of time and the court will place a restriction on the timescale that they are payable. The payments are usually made in a regular sum for a predetermined period.
Typically, term maintenance is used when the recipient will only need financial support for a certain period of time such as until the children reach a particular age or the individual can re-enter the workplace.
Nominal Maintenance – There may be occasions where neither spouse requires financial support when the divorce settlement is organised. In this instance, nominal maintenance may be provided. This will provide security to both partners in the event that their financial circumstances change.
If finances do alter, the recipient is able to make an application for an increased maintenance payment at a later date. This is usually taken when a couple have younger children who need to be financially supported.
Making Changes to Payments
Where a couple decide to take spousal maintenance payments rather than a clean break agreement, either one of the couple are able to make a request to the court for the maintenance payments to be changed. This may be undertaken if for example, the financial situation of one party changes.
This can include stopping or revising the payments. The court will undertake a detailed assessment of these applications and base their decision on something that is fair and reasonable for all parties. Alternatively, either one of the couple can request that the regular payments are capitalised.
This means that the payments will stop and be replaced by a lump sum, which is a one off payment.