If spousal maintenance is payable, the amount and length of maintenance would need to be agreed upon. For example, the wife would pay the husband £500 a month for three years.
The financial settlement can also include conditions on the maintenance payment, including if the spouse who was receiving payment lived with a new partner for six months or remarried, then the spousal maintenance would end earlier.
If you have children involved, the spousal maintenance is separate from any child maintenance assessment that you can calculate on the child maintenance website.
One default assumption lies behind both types of maintenance: that men pay them, and women receive them. In this, they reflect old social norms in which husbands were the ones who went out to work and brought home the paycheque, while their wives stayed at home and looked after the children.
Times have changed and those old social norms have now become stereotypes. Most women now pursue a career even if they marry and some become very successful. This has raised the question over whether courts should award spousal maintenance at all. But as things currently stand, it is possible for a husband to get spousal maintenance in situations where the wife was the main breadwinner. Talk with specialist divorce law firms like Stowe to find out more.
A clean break means that you wish to end all financial ties or claims between you and your ex as soon as possible upon divorce. If you have a clean break, there will be no spousal maintenance to be paid.
You can opt for a complete clean break which can include all capital, pension and income claims.
Or, you can have a clean break on capital, in that you are ending all claims against each other in terms of assets, property etc., but you keep your claims open on income, for example, if one of you is financially supporting the other by paying spousal maintenance.
The only way you can obtain a clean break is to have a financial order that the Court has approved. This also prevents your ex-partner from making any further financial claims against you in the future. A solicitor for divorce can help you arrange these orders and present them.
Another option for those who want a clean break immediately is to choose to capitalise your maintenance. This means you acknowledge that there is spousal maintenance to pay, but instead of paying it monthly, you pay a lump sum as part of the financial settlement and then have a clean break.
This can only occur if there is enough money to effectively “buy out” the other person’s maintenance claim. If a clean break were included, this would mean that neither party could make any further income claims against the other.
Capitalising maintenance payments may be attractive for one party if they want the security of a lump sum and do not want to rely on their ex paying them a monthly amount.
It can also be beneficial to the paying party; for example, they expect their income to increase in the future, so they would prefer to end the claims now through a clean break rather than keeping them open.
You can come to an agreement with your spouse either with or without the help of specialist family law solicitors. Whether legal help is necessary for you depends on your motivations, your partner’s motivations and whether the divorce is an amicable one. Direct conversations between you and your ex-partner regarding how you wish to divide the matrimonial assets, income and pension may be the approach you wish to take.
You should consider whether the amount will be recorded as a fixed amount or a percentage of the spouse’s income. For example, will it consider any future bonuses or pay rises? What happens if the person who is receiving the payment starts to earn a greater salary themselves?
Spousal maintenance should be dealt with at the same time as the financial settlement. Avoid dealing with any element of the financial settlement in isolation, as agreeing on one aspect may have direct consequences upon another. This is particularly important if you are considering whether there are sufficient funds to capitalise your spousal maintenance.
A financial settlement upon divorce can be negotiated and agreed upon through alternative methods/ADR:
Please remember that regardless of how you reach an agreement, it will not be legally binding until you have had it drafted into a financial order, also known as a Consent Order and had it approved by the Court. Please also consider insuring your spousal maintenance payments if you are receiving this from your ex-partner. This can be done via a life insurance policy.
The courts used to have a “Joint Lives” order when the paying party continued to make payments until either they or their ex-partner dies. However, these are now very rare, and the courts are increasingly opting for fixed-term maintenance payments which are reasonable and specify the length and amount of maintenance. As such, attempting to avoid spousal maintenance is not as necessary as it once was.
It is also possible to get spousal maintenance increased or decreased at a later date if circumstances change. It is also possible to put a “bar” on the spousal maintenance, preventing the other person from making any further applications to the Court to vary the amount or term of maintenance they receive in the future.
This might not be applicable for all cases, particularly for cases with younger children when the courts may consider it appropriate that the spouse could return this matter to the court if circumstances were to change.
If there is a court order in place, no one can simply stop paying without the court order itself being discharged. To do so puts the payer in breach of the order, rendering him or her potentially liable to pay arrears and interest on the unpaid amount and costs of collection. Worse still, the payer is liable to be committed to prison for non-payment. Those who stop paying usually do so because they calculate the payee will do nothing about it. The payer knows that the payee has to go through official channels and necessitate further legal advice and arrangements, which are potentially time-consuming and expensive.
The first step is to request, ideally in writing, that payments recommence. Should this fail, the payee can apply in the High Court (or County Court depending on the sum due) for a “Pay Up” summons using Form D50K. The court can make wide ranging orders for payment of the arrears by a variety of means as either you or the court wants. These can include ordering payment by standing order and obliging a person to open an account to make the payment, having first been given an opportunity to do so.
Bear in mind that if arrears are more than 12 months old, the payee would first need permission from the court to collect them.
It is possible, if you prefer more certainty in the future, to apply for an attachment of earnings order against the payer’s employers or to simply request the issue of a bailiff’s warrant for the amount outstanding.
In more difficult cases, it is also possible to apply for the appointment of a Receiver and a charging order against property such as land or securities or even money held in court and then apply for a sale of the charged property. It is even possible to for the court to issue a Judgement Summons which carries with it the threat of imprisonment if there is non-compliance. As a divorce solicitor firm, our specialist lawyers have extensive experience in all aspects of spousal maintenance, including actions such as these.
There are several factors to consider when calculating how much spousal maintenance should be paid. This includes the amount, the term and any conditions of payment.
As part of the financial settlement process, you and your spouse should always exchange full financial disclosure so that you are both satisfied that you have a complete and thorough understanding of the marital pot. This should include an income and expenditure budget so that you can roughly calculate what you both may need monthly once the divorce has occurred and you are living separately. You can also use this to compare your income needs and what maintenance may be realistic based on the income and projected income available. It is impossible to properly calculate a fair spousal maintenance agreement without full disclosure.
We are Stowe Family Law, the nationwide family lawyers with a local touch. As a specialist family law firm, working with couples to agree on a fair level of spousal maintenance is our bread and butter. With offices around the country including in London, Manchester and Birmingham, you can always find a ‘divorce lawyer near me’.
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