Spousal maintenance is an amount, awarded by the Courts to be paid by the spouse with the higher income to the spouse with the lower income when a couple divorce. It is only awarded if one party cannot support themselves without payments from the other. It can be awarded for a specified term or for life in some cases.
The recipient will lose their right to receive the maintenance if they re-marry, however it does not end if they simply cohabit.
On occasions the amount that has been awarded can be varied some years later by way of Court Order, if the circumstances warrant it.
Spousal maintenance may be paid on a regular, normally monthly, basis or can be paid as a single lump sum. This lump sum approach leads to each spouse becoming financially independent of the other and unable to make future financial applications against each other. This is known as a ‘clean break’.
One advantage of a clean break is that it brings certainty to both parties knowing that no further applications can be made. One disadvantage is that the lump sum award cannot be increased at a later date, if for example the recipient fell ill and could no longer work. Therefore, it is essential that you seek specialist legal advice from a family lawyer whilst considering your options so that you secure what is best for you.
Maintenance for a spouse depends principally on the recipient's needs, own income and ability to earn income. There are no set formulas and the amount payable depends on the payer’s net income amongst other factors.
Spousal maintenance is usually relevant in cases where one party earns considerably more than the other, and the needs of the recipient cannot be met from their own income.
Once it's been established that spousal maintenance should be paid, consideration is given to how long those payments should be in payment. This is subject to negotiation and the circumstances of each case. The court can order spousal maintenance to be paid during the parties’ joint lives, or until the remarriage of the recipient, or for a specific number of years (called a term order). Often the recipient will “need” a period of adjustment to enable them to increase their own income. Spousal maintenance may therefore be paid for a specific number of years to allow that party to increase their own income. The spousal maintenance may be payable whilst the children of the marriage are still minors and there is no realistic prospect of the recipient returning to work for the foreseeable future.
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.
In order to calculate the amount of spousal maintenance you may be entitled to claim one of our family lawyers would need to understand your full circumstances. For a free initial telephone consultation about spousal maintenance call 0800 321 3832 or request a call.