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Who is entitled to spousal maintenance?

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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

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