Taking the second question first, Yes – ‘Spousal support’ is the more modern expression for ‘maintenance’ and better describes payments made from one party to a marriage to the other to be used for themselves and not simply payments to contribute to the needs of the children, which is ‘child support’ and has been since the Child Support Agency came into being back in the early 1990s.
The payments are usually paid on a monthly basis, but sometimes expressed as a yearly sum, payable in instalments – so they are called ‘periodical payments’ as a result.
The improvement of using ‘spousal support’ as a description is because by the money being seen as ‘supporting’ that person, implies that it is to be in place whilst needed and not ‘maintaining’ which suggests ‘paying for’ something indefinitely. The change in expression should have led to the true nature of post-separation income support being (a) needs-based and (b) temporary becoming better understood, but there are still misunderstandings about its nature which often leads to avoidable conflict.
When can spousal support start?
Support under an Order can start on the finalisation of divorce. Before Decree Absolute/Final Order, any court-ordered support is ‘pending suit’, but support can be backdated to the application for support which can be in a petition. When tax laws were different, the nature of the obligation made a difference, but these days support is outside of the tax system and paid from after-tax (net) income. Support can start whenever agreed by the parties, but that does not mean it needs to start immediately.
Marriage was supposed to be ‘for life’, so doesn’t my ex have to support me indefinitely?
The blunt answer is usually ‘No’ – after separation, it is rare for somebody to need support indefinitely and the legal basis of periodical payments is that they are only payable when necessary to enable the lower-income spouse to adjust (or ‘transition’ in the words of the judiciary) to independence without undue hardship.
There was a case reported in 2014, [SS v NS] which was a very helpful synopsis of what spousal support was for, when it was appropriate and when it might end in particular circumstances. Much of the comment both in legal articles by experts and in later cases is similarly grounded in the principles explained there and it is helpful for both lawyers and those going through separation and divorce to be clear about those issues and not try to negotiate in a fog of ignorance, assumptions or distracted by all too common misunderstandings.
As explained in the case-law, the entire basis of support is to ease readjustment, not to simply pay indefinitely, so it should be clear that it is expected that the person in need of that support should be working towards independence. Long gone are the days when a former spouse would get maintenance indefinitely and ‘joint lives’ orders have become increasingly rare in the last two decades. When pensions could not be shared and there was sometimes a very considerable income disparity which would go on into retirement, that made it less unfair for the obligation to continue long after separation, but since pension-sharing became possible, firstly through earmarking and then by direct sharing by transfer, the need for support to endure vastly diminished and the circumstances where a court might make such an open-ended order now are exceptional.
It was unfortunate that the indefinite maximum duration was not more clearly articulated at the time of negotiation or court order, as it was almost never intended that ‘joint lives’ orders would run their course, but making them potentially that long put the onus on the payer to apply to the court for the support to be reduced or terminated when appropriate – the ‘or further order’ almost always included in the clause about duration. That onus was often misinterpreted to mean that the support should be indefinite, whereas the judge was merely placing the burden of ending the support on the payer who was expected to discuss changes with the payee from time to time and only return to court if it was not possible to reach agreement on variation. With competent lawyers on both side of a review negotiation, the judge could expect a variation to be agreed if appropriate and that has generally happened when there are indefinite orders.
How can a judge know how long is fair?
Judges obviously have regular experience of making decisions based on reasonable expectations, so determining how long support might be needed is just another exercise in balancing risks. A judge might be reasonable in assuming that a person who presently doing more childcare might be affected in what they can reasonably be expected to earn. An adverse impact upon the level of employment in going out to work is likely to be temporary and they will have more opportunities when the children are at school or have different levels of dependency. If looking at that, a judge might make the initial term of support until shortly after those childcare changes will have come about. Note that the judge considers what they might ‘reasonably’ be expected to do and what adjustments would be reasonable for them to make: the judge is following the law by doing so and is not restricted to base the decision on what that person has chosen to do – unreasonableness should not be rewarded. Writing one job application then giving up will not be enough, nor will taking the line that single parents cannot be expected to work: when presenting that line, the person might not know that their barrister or the judge manages to hold down well-paid work whilst also having the demands of childcare and so sympathy will not be engendered. Judges must try to find a fair balance between the payer and payee which sometimes calls for the payee to make more effort than they might think reasonable.
What if I don’t get work – will the support cease?
As orders are not being made for joint lives, the judges will now routinely include a date when support is to end BUT include as part of that ‘or further order’ so that if the expectations of independence have not been met, despite honest attempts to reduce dependency, the court can be asked to extend the term, providing it is done before the term expires. Lawyers call this (extendable) ‘term’ maintenance.
If the judge thinks that no matter what, the support should not survive beyond a particular date, then the judge can specify that the term is ‘non-extendable’ and bar the payee from asking for longer. That provision – making the support non-extendable – has a number of justifications and for example, the judge might think it entirely improper for support to be payable after the payer’s statutory retirement date, whether or not the payer might decide to remain in work. The reward for labour after the payer was entitled to retire is not one to be shared with an ex-spouse.
What are the options for spousal support – by agreement or from a judge?
Although a set amount is a common outcome, people can be much more creative than that as to what might best suit their individual circumstances.
Should the amount be Fixed/indexed/Formula-based or Capped?
Fixed amount
At its simplest, the amount of support can be a set figure e.g. £1,000 per month or £12,000 per annum payable monthly. That gives certainty, but may not work for either party – for example if the payer has bonuses, commission or an irregular income it might not be fair for the amount to be set and based on assumptions which might be very speculative.
Formula/Capped Support
Formula support may include a fixed amount, but with the possibility of more if appropriate.
If the payee needs to have certainty to meet their own obligations, then depending on the stable element of the payer’s income, they may agree an amount, but with an additional amount payable when bonus/irregular commission or other events leading to extra income arise. If a bonus is annual, that support can include a % and agreeing such a term is not unusual where there is a delay between the bonus being earned – for example during the marriage – and being paid some time later. To that degree the bonus was acquired during the marriage and might be agreed to be payable at a higher % than bonuses earned later on. That is a negotiation, but it is an acceptable term to consider.
If somebody might do spectacularly well in their work and the formula otherwise continue to give ‘support’ which is beyond reasonable need or reasonable expectation, it is possible to put a limit in the formula above which no additional money becomes payable. As the basis is need, the payee getting support at a ‘windfall’ level is going beyond the intention of the law and it is proper to consider whether a formula should have a maximum – like in child-support where the formula cease to apply at a certain income level.
Indexation/review
A fixed amount or the fixed element of a formula will be adversely affected by inflation – the rise of prices which would make it less valuable as time passes.
To save reviewing support when the resources of the payer change, an index, such as the Retail Price Index can be used to maintain value by compensating for inflation. If earnings will increase, then indexing is less risky than the payer merely hoping that the indexed amount remains affordable.
The order often specifies exactly how to use the RPI and what dates the numbers for the calculation should be used. As the RPI (and other indexes) is subject to review, the formula to use the Index uses index values that have been confirmed for usually 3 months.
What about the duration: Start Date/Stop dates/suspension and trigger events?
Although support would usually start right away, that is not always an appropriate solution.
For example: if the parties are living under the same roof for or support is not required for some other reason, the start date can be agreed and based on ‘trigger’ events, such as a house sale/purchase completing. Other ‘trigger’ events could involve jobs or businesses and commonly the schooling of the children can be used as a trigger – particularly for payees with child care to factor in.
Stop dates will be a mixture of aspects relating to changes in need and for example, support can be agreed to be ‘stepped’ to encourage independence.
Can I read an example of a structured deal to understand trigger events and stepping down support?
An example of combining ‘triggers’ and ‘stepping’ could be
Support of £1,000 per month starts when the payee has completed the purchase of a new home which has a mortgage, following that after 12 months, they will have competed an educational course or will have launched their business, so support will reduce to £500 per month and in the September after that the youngest child will have gone to senior school and that will free the payee to increase their hours/activity in the business so the support reduces to £200, but when the payee’s earned income has risen to £1,500 pcm the £200 is reduced by 50 pence for each earned pound over £1,500 and then reduces to zero and ends by [date for instance 3 years away]
Such a deal illustrates (a) a delayed start date based in the trigger of home ownership and a mortgage to pay (b) takes into account a plan to improve earning potential – the training or setting up of a business (c) adjusts to reflect an improvement in expected availability by the youngest child going to senior school (d) reduces when the payee gets a higher earned income but does not act as a disincentive so reduces by less than the increase in earnings and (e) has a termination date.
Such a complicated but constructive approach would also include clauses for the court being able to adjust the timetable and also might include a provision that it cannot be extended beyond a particular date – for example the last of the children reaching an age or a stage of education.
Flexible deals like the above example are usually best devised for people with a degree of cooperation as with so many changes, there is scope for conflict to arise, but dealt with openly and reasonably, even with such risk of problems, a structured deal like that can work to adjust to changes in circumstances.
What is a nominal order?
A ‘nominal’ order is one made for a token sum such as for £1 per annum. It was commonplace to include such a payment rather than dismissing rights, but recent enquiries have concluded that in reality almost no nominal orders have been increased to a meaningful amount within the memory of judges and lawyers. As a result of it being clear that the amount is never activated from £1 a year to a useful sum of support and as £1 per annum can hardly be described as actually providing any ‘support’ there are moves towards dismissing such orders and them ceasing to exist. Recent judicial comments are that the judges habitually dismiss nominal orders if they ever come before the court as part of an order under review for variation.
Summary
- Spousal support / maintenance is based on need
- Spousal support is intended to be ‘rehabilitative’ and temporary to facilitate adjustment to independence
- The duration should be based on real-world factors
- The amount can be expressed in a number of ways
- The payee needs to plan for independence and take steps accordingly
- Both duration and amount should be regarded as negotiable and can usually be adjusted
- Support should cease when that would not result in undue hardship
- A positive and constructive attitude can assist in getting a structured deal which is fair and suits the circumstances
Experienced family-law solicitors will have seen the problems that arise through lack of anticipation when support has been badly structured and the conflict that can arise when one, other or both think that financial arrangements are ‘unfair’ as a result. A good family lawyer and indeed mediator will help somebody think through what might happen and plan accordingly. Better to have legal expense on getting a sensible deal which is clearly understood than having a conflict later on.
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