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Spousal maintenance explained

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Divorce - spousal maintenance.

Spousal maintenance is often a complicated subject. With advice from your family lawyer the starting point should always be to carefully consider what your reasonable income needs are.

One of the first questions that many clients tend to ask upon divorce is “will I have to pay on-going maintenance to my spouse?” or conversely “will I be able to claim any maintenance from my ex?”

As always in family law the answer is, it depends on individual circumstances.

It is important to distinguish right from the start that there is a difference between spousal maintenance and maintenance paid to a spouse on behalf of any children – child maintenance. Whereas there are set formula for the calculation of child maintenance, spousal maintenance can be much harder to deal with and is looked on by family lawyers and Judges alike as something of a dark art.

Of course, other than in very narrow circumstances, claims for child maintenance are dealt with by the Child Maintenance Service (CMS) and not dealt with in the family courts. But spousal maintenance is very much something that family lawyers are asked to help with.

Will I have to pay spousal maintenance?

The answer to the question of whether you will have to pay ongoing spousal maintenance will depend on the specific facts of the relationship. Since 1984 the court has been under a duty to consider whether or not it is appropriate to make a clean break order thus ending a persons’ financial obligation to pay maintenance as soon as possible after a divorce is finalised. The court needs to consider whether to order periodical payments (maintenance) for life, for a fixed term or not at all. In reaching a conclusion the court must exercise its discretion and perhaps not surprisingly, this can produce some contradictory results.

Different types of spousal maintenance

A lifetime order may be appropriate after a long marriage where there is a large disparity in the income/earning capacity of the parties or where there are young children and there is no realistic prospect of the recipient returning to work for the foreseeable future.

A fixed term order is made for a specific number of years and may be either extendable or non-extendable. It tends to be used after a shorter marriage particularly if the children are older or there are no children. Term maintenance may be paid up until a specific future event such as the recipient being able to draw down on a pension or completing a period of re-training.

One further category of maintenance is a nominal order. This is where an order is made for a nominal amount to be paid (frequently £1 per year) solely in order to keep the recipient’s claim open as a safety net. Some family Judges are of the view that these types of order should routinely be made where the recipient is the main carer of the children to allow that person to concentrate on looking after the children and/or to cover a situation where there is a dramatic change in circumstances. It is common for nominal orders to be made for a limited term that ties in with the children reaching a certain age or ceasing full time education.

How are spousal maintenance awards calculated?

Any maintenance award depends on the payer’s resources and ability to pay as well as the recipient’s reasonable needs. Contrary to popular belief there is no automatic right to an equal share of income unless the recipient’s needs justify it. A former spouse cannot therefore expect a maintenance order which provides for equality of income. The approach taken by the court is a complex balancing exercise in trying to achieve fairness. They will consider both parties’ reasonable needs and try to achieve an order that meets those needs. The parties’ previous lifestyle is a factor to be taken into consideration but the reality is that both parties will be expected to cut back in a situation where the needs of two households are to be met by what was previously only one.

Consideration will be given by the court as to how much of the recipient’s reasonable needs can be met by their own resources. These will include not only any earned income but also child support, tax credits and child benefit and any other income whether from investments/capital which could be used to generate an income.

A thorny issue is always earning capacity as opposed to actual earnings. It is incumbent upon the recipient to make all reasonable efforts to maximise their income whether that be by way of increasing their working hours, undertaking training in order to improve their earning capacity or other means.

A court is not going to expect a mother with young children to work a 40-hour week. They will however expect a mother with school age children to be working hours that fit in with child care particularly if the father is also able to deal with some of that care during the working week.

The goal is to try to provide support to the recipient in order to allow them to achieve financial independence sooner rather than later whilst ensuring that they are not left in an inferior financial position than the higher earning spouse.

Spousal maintenance is often a complicated subject and it is certainly an emotive one. With advice from your lawyer the starting point should always be to carefully consider what your reasonable income needs are. If your own income does not meet those needs and your spouse has a higher income than you do then spousal maintenance may well be appropriate.

Judith Buckland
Divorce & family solicitor, Wells, Somerset

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