Spousal maintenance is an agreement reached during a divorce financial settlement that aims to help the financially weaker party adjust to their financial position after separation.
But how is it calculated, how long does it last and can you change your agreement if circumstances change? Here, Stowe solicitor James Looi, answers the most common questions.
What is Spousal Maintenance?
Spousal Maintenance is an ongoing obligation for a specific sum of money to be paid by a husband or wife to their former spouse following a divorce. This is usually made by way of periodical payments or interim periodical payments on a regular basis, whether weekly, monthly or annually.
How is Spousal Maintenance calculated?
There is no set formula for calculating spousal maintenance as all circumstances of the married parties are taken into consideration. However, firstly there must be an income need of one spouse which is not being met from other income sources. Secondly, the other spouse must be able to afford to make a payment to assist their ex-spouse’s income needs whilst meeting their own needs.
It is therefore important to note that spousal maintenance is not applicable in every divorce.
Due to the numerous variables when calculating spousal maintenance each case varies and it is therefore important to seek advice from a family solicitor when determining firstly whether there is a case for spousal maintenance and secondly the level of maintenance which should be potentially made.
How long does Spousal Maintenance last?
When the level of Spousal Maintenance has been agreed or ordered by a Court, the terms are put into a Spousal Maintenance Order.
Spousal Maintenance Orders are usually made for a fixed term (e.g. until the youngest child of the family reaches 18) or with a trigger event (e.g. the ex-spouse cohabits with a new partner for over 6 months). Spousal Maintenance Orders automatically end if the receiving spouse remarries.
Again, the terms for the Spousal Maintenance Order are dependent on the married parties’ circumstances.
What to do if you or your ex-spouse can no longer afford maintenance payments?
If a Spousal Maintenance Order has been made and the ex-spouse can no longer afford to make these payments, the ex-spouse will need to make an application to the Court. They are not automatically relieved from making these payments. A Spousal Maintenance Order is a legally enforceable document and there can be severe consequences for breaching an Order of the Court.
Failing to make these payments could result in the court enforcing the Spousal Maintenance Order which includes sanctions and penalties for breaching a Court Order. There could also be an order of interest on late payments with a further Order for legal costs to be paid if the receiving spouse has instructed solicitors.
Can a Spousal Maintenance Order be varied?
A Spousal Maintenance Order can be varied by an application to the Court. However, when making such an application, the Court has the power to vary the maintenance levels either upwards or downwards and therefore there is a risk of the maintenance levels increasing. Legal advice should therefore be taken before making an application to vary spousal maintenance.
When the Court is asked to vary a Spousal Maintenance Order, they will review the current circumstances of each party again. The Court will also consider other criteria including:
- The intention of the Spousal Maintenance Order
- The financial resources of each party
- The paying party’s ability to meet the income needs required of the spouse/ex-spouse
How to reach a Spousal Maintenance Agreement
There are other numerous options in resolving Spousal Maintenance issues which are much quicker and much more cost effective then going to Court. Court proceedings should be the last resort.
The cheapest and sometimes most effective is direct and open communication which can include attending mediation together. A solicitor can assist you through this process so that you have the knowledge as to what spousal maintenance amount and term may be appropriate in your particular case.
However, in some circumstances this is not appropriate or there may be difficulties with direct communication with your ex-spouse. In this case, your Solicitor can have a more active role and can correspond on your behalf to assist you in reaching an agreement.
In the event that negotiations are not successful then the only option may be to make a Court application. It is important you seek advice from a solicitor who will be able to advise you on your application when submitting this to Court.
Useful links
Stowe Support Client Guide – Spousal Maintenance
Get in touch
For more information about spousal maintenance or divorce financial settlements please do get in touch with our Client Care Team using the details below, or make an online enquiry
My Ex has been difficult before and since separation, I was in poor health at the time of separation he was abusive, controlling and tormented me, I had surgery to remove the tumour and was doing well, but he did things to jeopardise my recovery, I knew if I didn’t leave I would not make it out alive. I later found out the cancer had spread and I needed chemotherapy, he refused to leave the property and I was forced to take out an occupational order just so I could be home to start treatment. A lot went on and eventually I became so ill from treatment, I was broken hearted and an emotional wreck broken, I was incurring unnecessary costs and was not in the position to continue responding to his incessant nastiness and lies. I stopped responding. However, I then lost all contact had no idea where he was living for 2 years following this, eventually I was able to locate him and commenced divorce proceedings. I tried to be amicable with finances but he refused to exchange form Es and then after one session of mediation after finding out my financial situation instructed mediation services that we were going through solicitors, despite knowing I could not afford one. I worked all hours and earnt good money throughout our marriage, I have been in the same employment for 30 years and have a good pension. Due to my health I still work but unable to work to the capacity I used to due to my ill health. He stopped his pension to which he contributed very little and is in a very well paid job, he has lied all through his form E and continues to do so, spending extravagant amounts of money, whilst I live in poverty. I was ordered to pay the mortgage and all bills as to get him to agree to move out, he has contributed nothing in almost 5 years but all this seems to count for nothing. We have had an FDA which was awful I felt unheard as a litigant in person all the months of stress got me nowhere, he continues to lie and seems to be getting away with it, I have had no choice but to get a solicitor which is now driving me in to debt, while he has the means to keep bullying me to the point, that I am reliving the emotional and mental torment of his past actions, (which what I have mentioned is just the tip of the iceberg) How can he get away with it? why does it seem like the law does not take any action against such perpetrators and allow the bullying to continue? why it is that victims continue to suffer and feel unheard? why are so many driven into submission where they have to agree to unfair financial settlements in favour of their spouse who has behaved in the most horrific manner and is able to continue to relentlessly torment their spouse/former spouse with no repercussions. Why is he allowed to go for my pension? which he wants an actuary of and for which I have to pay half, despite my desperate financial situation. He is in good health while I struggle to continue to work with mine. why do we have to fight so hard only to be left to clear up not only the financial mess these people leave us in but also the emotional and mental scars of their relentless efforts to control us, bully us and break us? Things need to change, what is the point of a form E if a judge doesn’t even acknowledge them? Why is the justice system in family law so flawed and outdated? I am just one person I feel helpless and from what I have read on many sites I certainly am not alone but when all is said and done although so many lives are ruined and continue to be by narcissism and the lack of justice and fairness, there is little chance of change.
I’m afraid I don’t agree with this comment. What I don’t understand is why after a divorce, the higher earning spouse is allowed to be used as an “insurer of last resort” if the reason someone needs support is not a direct consequence of the marriage. I know it is the law, but the law needs to change. For a start, why is the higher earning spouse allowed to be used in this way but the lower earning spouse is not? What happens if I can’t work? Why shouldn’t my ex-wife guarantee me half her income in those circumstances?
Or better yet, why don’t we just let people move on after divorce?