Spousal maintenance has a different status in law to child maintenance. The latter is mandatory – it must be paid by the parent who moves out following a divorce, although the actual amount depends on the family’s individual circumstances. By contrast, spousal maintenance is discretionary: whether it is paid at all will depend on the specific needs of the individuals concerned. Every family is different and every case considered on its own merits.
Criteria for spousal support
Also known as spousal support or (in the United States) alimony, maintenance is intended to help spouses who may have trouble supporting themselves following a divorce. Perhaps they have limited commercial experience, gave up work to care for the children, or their employment prospects are limited in other ways.
A very common situation in matters of maintenance is the long marriage in which one spouse focuses on their career and earning potential while the other gives up work to concentrate on running the home and raising the children. They may eventually return to part-time employment. After years together, as the children reach adulthood, the marriage finally breaks down. It’s not difficult to see how the homemaking spouse, with a truncated career and limited earning potential, could struggle to support themselves without a meaningful level of support from their ex after a divorce.
As often as not, couples about to go their separate ways reach informal maintenance agreements, but if this proves to be a struggle the family courts can intervene and issue a maintenance order.
Each party’s financial needs are the single most important criterion considered by the family courts in any financial settlement, and certainly the decisive factor in whether or not maintenance will be paid. If the poorer spouse can demonstrate that their ability to earn an income is limited and they will struggle financially without support, then in most cases a maintenance order will be as part of the divorce settlement. The amount will depend, of course, on their former partner’s earning power and overall financial resources.
If you are considering divorce, the central question to consider is this one: how easy you would find it to earn enough money to support yourself.
The court will certainly consider your ability to find work and earn a salary when deciding on a fair financial settlement. This is sometimes referred to as your ‘income potential’. This will be affected by such factors as your age, whether or not you stopped working at any point to look after the children, and your previous experience.
However, you may hold other financial assets – for example, savings or pension entitlements – and, of course, these will also be considered. If they are substantial, a family court may conclude that you do need significant financial support from your ex, even if you have no salary.
A lengthy marriage is normally considered a good indication that you made a meaningful contribution to the union, even if it was not a financial one. The family courts do recognise the contributions made by homemakers and child-rearers to the career success of high earners and this will be reflected in awards made.
If you do receive a maintenance award it may be indefinite one or time-limited. Do bear in mind that maintenance awards can be affected by changing circumstances – what if your ex dies, for example, or loses their job? A settlement in which you receive a larger share of the assets in return of giving up maintenance may be a more sensible choice: a family solicitor will be able to provide guidance on so-called ‘clean break’ settlements.