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.