It is common for divorcing couples to have concerns about how they will make ends meet financially whilst negotiations are taking place, with one party needing additional financial support from the other in order to satisfy their outgoings. This is known as spousal maintenance and is treated separately to that of child maintenance. This article looks at spousal maintenance and discusses the things that are taken into consideration when calculating payments.
How is spousal maintenance calculated?
Either party can request spousal maintenance from the other as part of general negotiations or apply to the court if payments cannot be agreed. It is important to remember, that spousal maintenance is not available or appropriate in every case. When considering whether spousal maintenance should be paid, regard is given to the factors within s25 of the Matrimonial Causes Act 1973. These are:
- The income, earning capacity, property, and other financial resources which each party has or is likely to have in the foreseeable future
- The financial needs, obligations, responsibilities, and resources of both parties during the marriage and after the marriage has ended
- The standard of living enjoyed by the family before the breakdown of the relationship
- The age of each party, and the duration of the marriage
- Any physical or mental disabilities of either party
- The contributions made by each party to the welfare of the family, including both financial and non-financial contributions
- Conduct, providing it is relevant to the financial resources of the marriage, although in practice this is rarely considered
- The value to each party of any benefit, which, by reason of the marriage ending, they will lose the chance of acquiring
The aim when deciding whether spousal maintenance should be payable in a particular case, is to produce a fair and equitable outcome, and to ensure that both parties can meet their needs.
How much spousal maintenance am I likely to receive?
Unlike child maintenance payments, there is no set formula or online calculator for assessing spousal maintenance. Broadly speaking, it is calculated by balancing the income of the parties against their monthly and annual income needs. Any spousal maintenance payments that might be made will be considered with reference to the s25 checklist as set out above.
The court will also consider how much of the receiving party’s reasonable needs can be met by their own resources. This will include any earned income but also child support, tax credits, child benefit, and any other income, whether from investments or capital, which could be used to generate an income.
It is expected that the recipient will make all reasonable efforts to maximise their income, whether that is by increasing their working hours, undertaking additional training in order to improve their earning capacity, or in some other way. The goal of spousal maintenance, in most cases, is to provide financial support in order to allow the receiving party to achieve financial independence sooner rather than later.
What information needs to be collected for a spousal maintenance application?
If the financial resources of the couple are limited, making spousal maintenance payments that satisfy the needs of both parties is likely to be at the limit of what is achievable. Both parties will need to set out their monthly and annual financial expenditure, which may also be part of the wider disclosure exercise using Form E. When thinking about what those monthly needs are, thoughts should be concentrated on the standard of living enjoyed throughout the marriage.
Can spousal maintenance be challenged?
Either party can make an application to the family court for spousal maintenance payments to be varied. However, the court has the power to adjust maintenance payments upwards as well as downwards. Therefore, if you are the one making payments, there is a risk that the amount you pay could increase. If you apply for a variation of spousal maintenance, your circumstances at the time of the application will be assessed, and the following criteria taken into account:
- The intention of the spousal maintenance order
- The financial resources of both parties
- The ability of the paying party to afford ongoing payments
How long is spousal maintenance paid for?
Spousal maintenance is typically paid on a regular basis, usually monthly, or it can be capitalised and paid as a single lump sum. The lump sum approach leads to each spouse becoming financially independent of the other and prevents future financial applications from being made against the other. This is commonly known as a “clean break”.
One advantage of a clean break is that it brings certainty to the divorcing couple knowing that no further applications can be made. However, a lump sum award cannot be increased at a later date, if, for example, the receiving party fell ill and could no longer work.
If a clean break is not used, there are three types of spousal maintenance which can be implemented. These are:
- Lifetime spousal maintenance order – this type of 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 them returning to work for the foreseeable future
- Fixed term spousal maintenance order – this is made for a specific number of years and may be extendable or non-extendable depending on the terms of the order. It tends to be used after a shorter marriage, especially if the children are older or there are no children. Term maintenance can be payable up to a specific future event, such as the receiving party being able to draw down on a pension or completing a period of re-training
- Nominal spousal maintenance order – this is where an order is made for a nominal amount to be paid (typically £1 per year) in order to keep the recipient’s claim open as a safety net. 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.
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