If you are going through a divorce, you may understandably be worried about what happens next and what the financial implications are for you going forward.
This article will help you understand the issue of spousal maintenance but is no substitute for getting the right advice from a specialised lawyer, since each case is unique, and the outcome will therefore depend on the circumstances of your individual situation.
What is spousal maintenance?
Spousal maintenance is a regular ‘income’ that is paid by one party to the other either during or following a divorce or dissolution. Spousal maintenance is not intended to cover the costs associated with raising children. It is the money paid by a husband or wife or civil partner to their former spouse/civil partner following a divorce or dissolution to assist with living costs and other needs.
It is usually paid every month until the death of the relevant persons, or if a period has been agreed and fixed in court until that time period has expired. If the recipient re-marries it will normally end, whereas it does not end automatically if s/he cohabits. Spousal maintenance may stop on retirement if both parties have access to a pension.
The divorcing couple may be able to agree their own financial arrangements but if not, one of the parties can choose to apply to the court for spousal maintenance. In England and Wales there is no prescribed formula for calculating the amount that one party should pay to the other. Instead, the court will decide an amount that should reasonably cover the needs of the relevant party.
Can I claim spousal maintenance?
There is no automatic entitlement to spousal maintenance. Whether or not you can claim spousal maintenance will depend on all the facts of the case but most important to note is that it is only payable to married people and civil partners upon divorce/dissolution. This means you cannot claim spousal maintenance if you never married your partner, even if you have co-habited for decades.
Obtaining spousal maintenance will very much depend on whether or not you have an income independent from your former spouse and what your specific needs are. Even if you do have your own income it may be possible to successfully claim spousal maintenance if your earnings, or capacity for earning, are significantly lower than that of your former spouse/civil partner, for example, where a wife has given up her job or taken a career break to raise children who are now over 18 years, her prospects on returning to the job market will be limited compared to her former husband whose career has not been interrupted. Of course, whether or not you will get spousal maintenance will also depend on whether your ex-spouse has the ability to support your needs financially.
Will I need to pay spousal maintenance?
The court will not order one party to pay the other spousal maintenance unless that seems the best and fairest option in all the circumstances. The court will first consider whether a clean break between the parties is possible, and this is usually the preferred choice for the parties.
You will only be required to pay long-term spousal maintenance if there is a large disparity in income between you and your former spouse and if you have the means to pay two sets of household costs. If there is a substantial gap in the amount of income each party earns, and regular maintenance seems therefore appropriate, details relating to your income and that of your former wife or husband or civil partner must be disclosed to the court.
The court will consider not just wages but all sources of income, for example, profit from property, investments, inheritance and so on. You will also be asked about your outgoings, therefore careful consideration of what might be included in your monthly budget is vital. Spousal maintenance can be reviewed at any time, and can be revised up and down, depending on the two parties’ current financial circumstances.
Spousal maintenance is not automatic upon divorce or dissolution and must be applied for separately as part of the financial proceedings. During proceedings, interim maintenance can also be applied for in certain circumstances – often referred to as ‘maintenance pending suit’. It is important to take legal advice to find out what your options are for maintenance in all cases.
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