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Family Law Blog

Comment on divorce & family law 

Who is entitled to spousal maintenance?

20 Comments

Am I entitled to spousal maintenance.

When a couple separate whether one party is entitled to claim spousal maintenance from the other is a common concern. There are several factors that need to be considered:

  • Length of marriage
  • Whether each party is working
  • The age of the parties
  • Who is looking after any children of the marriage
  • Can both parties manage financially without spousal maintenance?

It’s important to understand that spousal maintenance is just that, financial support from one spouse to another paid on the breakdown of a marriage. It does not apply to unmarried couples and is different to child maintenance.

The conditions under which spousal maintenance might be paid vary, as every marriage varies. If a couple have been together for a long time and one party has given up work to run the home whilst the other has developed a career and been the family breadwinner there are arguments to say that the homemaker is entitled to financial support, in the form of spousal maintenance, if the marriage breaks down and on the basis that the spouse in need cannot support themselves financially from income they have coming in from other sources.

Informal agreements about money

Many couples reach an informal agreement about spousal maintenance, perhaps agreeing to split capital assets like a house or savings in favour of the home maker, whilst the breadwinner, who has more potential to generate income and wealth on an ongoing basis takes a smaller share. In this case, spousal maintenance is deemed to have been capitalised, rather than being paid in monthly instalments.

In other cases, spousal maintenance is paid on a regular basis, intended as income to cover the living costs of the spouse receiving it.

If your ex is not willing to reach an agreement about spousal maintenance you will need to ask the courts to consider your case and they will decide whether you are entitled to spousal maintenance. If they think so they will make a court order for spousal maintenance to be paid by your ex.

Questions to help you decide whether you are entitled to spousal maintenance

To establish whether you are likely to be entitled to spousal maintenance you should ask yourself the following questions:

  • What are your financial needs and income potential? Can these needs be met without the support of your ex?
  • Have you been married for a long time and given up work to support your spouse or family by becoming the home maker?
  • Are you of an age where establishing a career, to deliver the kind of lifestyle you have been used to, would be difficult?
  • Would you be financially better off having a financial clean break and lump sum from your ex, rather than maintenance?
  • Are you prepared to take your case to court, if your ex will not agree to spousal maintenance?
  • Are you planning to re-marry? (if you do you will lose your right to spousal maintenance)

As is often the case with family law, every case is different. It is therefore important to take advice from a divorce and family lawyer. They will be able to consider your circumstances and advise on the likely success of your case.

 

Sue Harwood
Family Law Solicitor, Cornwall

Comments

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I am a retired Police officer, having retired after 25yrs service and I subsequently receive a I’ll health pension, along with a personal injury award…After 35yrs of marriage I divorced and attended a final financial hearing and a deputy District Judge awarded my ex 40% of my I’ll health pension and I was also ordered to sign over the matrimonial home which was mortgage free without receiving any of the substantial asset ..I was also ordered to pay 50% of my injury award in spousal maintenance, and consequently while my ex wife is now living mortgage and rent free while still retaining an ability to work I am having to apply for an individual voluntary arrangement (IVA) The spousal maintenance payment was a life term payment and I feel the order was extremely harsh and unfair, and a pension share would have been sufficient…I feel that fairness does not seem to have been an element in my case…..note I served as aPolice constable ...

By Paul P on Thursday February 1, 2018

Dear Paul

Thank you for your recent comment on my blog post from last year, I am sorry to hear you were unsatisfied at the outcome of your proceedings.  I am not sure when you got your Court Order there is a right of appeal if brought within 21 days of the date of the Order.  However, by way of advice, you cannot appeal just because you feel the judgement was unfair, you have to show there was wrongdoing or that the Order was unjust because of a serious procedural or other irregularity in the proceedings.  If you feel you have grounds for appeal and are within the time limit, then please contact me direct and we can arrange a time to discuss your options on a free of charge basis, I cannot comment further without knowing the facts of your case.

By Sue Harwood on Friday February 2, 2018

I have been married 3 years ago, moved to the US as he is a us citizen living in the us… i gave up my job in the U.K, I have not worked for 4 year as i have being raising the kids . we have 2 children I have been a home maker while he is working and gaining experience and qualification. I was wondering what are my options. He is treating to take my kids from me as I will like to go back to the .uk with them. Please any advice

By Helen on Monday March 26, 2018

Thanks for your comment Helen, you could potentially have a claim for spousal maintenance here yes but only if you can first establish jurisdiction here in the English Court, that said, enforcing an English maintenance order against him in the US if he decides to stay there might be a lengthy and costly exercise, so you should first weigh up your options in the US and take advice there too.  You will of course need his permission to remove the children from the US or a court order if he does not agree.  I will email you separately so I can establish a bit more information from you.

By Sue Harwood on Tuesday March 27, 2018

My husband of 12 years(together for 14) has decided he no longer loves me and our marriage can not be saved. We have 2 young children. Before I met him I owned my own home with a small mortgage(this would have been paid off in 8years). We bought a home together 4 years after we married and all of the equity from my previous home went into the deposit of our new/current home. I believe that my husband(who earns substantially more than me) will be entitled to 40% of any equity we have from the sale of our new home? Is that correct? That would mean I would not even be able to afford a similar house in the same area as I lived in before I met him as I only work part time and have done since our eldest was born 10 years ago. Our 2 children will live with me, would I have any claim to spousal maintenance. I can’t see the wood for the trees at the moment, on top of the emotional stress I am in a panic over how I will provide for our children. Any general advice would be really appreciated, thank you.

By Tracy M on Wednesday April 4, 2018

Hi Tracy, thanks for your post on the blog.  How the equity in the property will be divided will depend on your respective housing needs and the other financial resources you each may have, including your respective mortgage capacities.

Whether or not you will be able to claim spousal maintenance will depend on whether you can demonstrate a financial need and your husband has the ability to pay, taking into account his own reasonable needs.  I would obviously need a lot more information before I could advise you, so I will email you separately and we can arrange to speak on the phone and I can give you some advice about your options.

By Sue Harwood on Thursday April 5, 2018

I too am in a similar situation to Tracy, I have been married for 12 years and together for 14 years. Husband has been meeting/messaging a woman at work and after I found messages containing declarations of love to each other, my husband admitted that he has not loved me for years and would like to separate but stresses it is not about the “other woman”.
Husband earns considerably more than I do and I would not afford our mortgage without him, I have only been working for the past 2 years part time as we agreed I would raise our children who are 9 and 11 whilst he built up career. I have looked into how much I could borrow (mortgage) but it is no where near enough to stay in the area for work and School so when our marital home is sold I would need almost all of the equity held in our home, we currently have approx 40% equity. Would I be entitled to this and or spousal maintenance payments? Both children live with me and I am very worried about how I will provide for them and affordability of a new home.
My husband also has credit card and loan debts from a very expensive cycling hobby which he has said will only increase now as he needs to furnish a rented accommodation and impress the “other woman” but as we have not separated our bank yet I am assisting with monthly payments - I feel like my emotions and mental stability are all over the place especially as my husband is yet to secure his rented accommodation so is sleeping on the sofa when he is not staying at the “other woman’s” house.  Any advice would be greatly appreciated, thank you so much

By Sarah Pritchard on Tuesday April 17, 2018

Dear Sarah, thanks for your blog post.  The first consideration for the court would be the welfare of children of the family who have not attained the age of 18.  So your financial needs as their parent will have to be given careful consideration and if you needed all of the equity to provide the children with a home that is within the powers available to the court, depending on the other factors of the case.  If you cannot afford a mortgage without spousal maintenance from him, then again it is possible to seek an order from the court, but what will you will be entitled to will depend on all the other circumstances of the case.    I will email you separately to obtain further information from you so I can advise you more fully.

By Sue Harwood on Wednesday April 18, 2018

Hello, my ex husband is threatening me with a spousal maintenance claim if I were to opt for a pension sharing order. I worked part-time for almost ten years to bring up our two children so was not able to save up as much for a pension. As of this year I am earning £20k more than my ex-husband and decided to work full-time in order to keep the house and pay him out as much as I was able to afford. He bought a new house, used a lump sum that I took out as a loan (half of his stamp duty and furniture compensation) to deck out his new house and is now unhappy that I would ask for a fair compensation of his pension. I thought a spousal maintenance order would only be granted if one person could not financially survive without it. Just not as comfortable. He can certainly survive and has a good job, but clearly is convinced he would be able to claim spousal support due to our 30% difference in salary. Myself, I have circa £500 as disposable income to entertain the children and to save for holidays. Would he have a chance?

By Susan Smith on Tuesday May 8, 2018

Dear Susan

Thanks for your post on my blog.  A court when considering any spousal maintenance award will look at, amongst other things, the affordability of the paying party, your reasonable needs will be taken into account and saving for a holiday for the children and entertaining them would in most cases be reasonable of course.  The court would also look at his income and earning capacity to ensure he is maximising that as much as he can and will look at his own reasonable needs to see if he is able to meet those without suffering undue hardship, it sounds like he can without too much difficulty and it sounds like he might be simply hitting back at the suggestion you would want to make a claim on his pension,  what you will be awarded by way of a pension sharing order will depend on the length of your relationship and the extent of your own pension assets as well as all the other circumstances of the case.  I would need to take a lot more information from you before I could give you further advice but I am happy to do so, I will therefore send you an email.

By Sue Harwood on Wednesday May 9, 2018

How does this work if your husband lives abroad ... in the Middle East? Feeling stuck and not sure which way to go.

By Jane on Sunday May 27, 2018

My ex partner is wanting a divorce but i am worried about the children and my home. I really need some advice, worried sick

By Sharon Moorhouse on Monday May 28, 2018

Dear Sharon,  thanks for your post on my blog, I understand you have also requested a call back through my head office, so I will be in touch with you direct.

By Sue Harwood on Tuesday May 29, 2018

Dear Jane

Thanks for your post on my blog.  Enforcing maintenance agreements where the payor is living abroad is of course difficult, especially in a country where there is no reciprocal enforcement arrangement, but it is not impossible to benefit as there may be assets from which maintenance can be capitalised for eg, I would of course need a lot more information from you before I could advice you so I will email you separately to see if you would like to provide me with some further information.

By Sue Harwood on Tuesday May 29, 2018

Hello - I’ve got my decree nisi and my ex and I are now working out the consent order.  We’re just about agreed but I still feel a bit aggrieved that having had a good career, having then met him and become an older mother (I was 49 when I had my last child, now aged 7), he left and has expected me to bear the brunt of the costs for the kids and wants a share of the house (the equity in the house is capital I put in, and I paid more towards the mortgage until taking voluntary redundancy in 2010 and then finding I was pregnant….  He then got together with a woman who encouraged him to go to a solicitor (before that he had said he wasn’t going to) and it all turned quite nasty.  We are getting on better now, which is good for the kids, but I could do with someone just telling me whether or not the agreement we’ve reached is a reasonable one.  I can’t afford a huge amount in solicitor’s fees as I only earned £13,000 last year.  I guess I’m rather sore that my career has gone backwards due to having his kids and moving up north as he was unhappy down south, and also that he doesn’t seem to recognise that getting a similar job up here when I’m heading towards 60 (I’m 57) and have 3 kids isn’t as easy as it might have been down south.  On the other hand perhaps legally we have reached a perfectly reasonable settlement which the Courts will agree to.  But, as I said, I think I could just do with someone confirming that to me.  Please could you let me know how much a quick scan of the consent order might cost, if I could also provide some financial info.?

By Sarah Lewis-Briggs on Wednesday June 6, 2018

Sarah

Thanks for your blog post and also your direct email enquiry, I will ring you so I can take more detail and then I can give you a fixed fee quote for advising you with regards to the proposed agreement.

By Susan Harwood on Wednesday June 6, 2018

Hey, i have been married to my wife for about 4 years, it will be 5 years in november this year. She moved out of the house about a year and 2 months ago. I am looking to start divorce proceedings against her, and i have put in an application to the child maintanience agency to determine how much i would have to pay for our son.

I would like to know if i would have to pay any spousal maintence payments. We dont have an assets or property together, and has been working full time every since she moved out the house. She is 31 and hasn’t got any health restrustions to stop her working. I am not sure how much she earns but she rents a property and appears to be living ok( she travels alot).

Will she be entitled to any spousal maintence payments or lump sum?

By Daniel Johnson on Saturday June 30, 2018

Hi Daniel

A spousal maintenance award is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the claimant.  Duration of the marriage and presence of children are pivotal factors.  An award is only made by reference to “need”.  In every case the court must consider a termination of spousal maintenance with a transition to independence as soon as it is just and reasonable.  It therefore sounds to me from what you have said that she has already transitioned to financial independence and therefore spousal maintenance may not be relevant in your case.  Obviously I would need much more information to advise you fully and if you would like me to provide that advice then let us know.

By Sue on Monday July 2, 2018

Good afternoon
Sorry for question. My ex husband is British citizen. Working in Bosnia since 1999. We have been together 13 years. As he wanted divorce he also left me without any financial support for last 7 months very difficult for me. He’s not paying bills either. I was working till 2013. His income is extremely good even never knew exactly. He also has military pension and funds n UK. I can’t afford solicitor. Living in Bosnia, and I’m Bosnian.
Any advice please
Thank you very much for reading
Sabina Meekings

By Sabina Meekings on Friday July 6, 2018

Dear Sabina, I am sorry to hear of your situation.  It sounds to me like you certainly need financial support from him and given the length of marriage he may indeed be obligated to support you but it will depend on many other factors, such as the presence of children and your capacity to work and other assets of the marriage.  It sounds like you need a solicitor to write to him to find out why he has stopped supporting you and try and get this re-established.  I can do that on a small fixed fee if that helps.  Please email me direct on susan.harwood@family-lawfirm.co.uk if you would like to explore that.

By Susan Harwood on Monday July 16, 2018

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