Q&A: Spousal Maintenance

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I am a stay-at-home Mum and my husband wants a divorce, what am I entitled to?

This is a particularly common issue that I encounter when working with clients and one that, understandably, causes people anxiety and stress. The courts have wide-ranging powers to provide for you and to an extent your children.

The court has the power to order your husband to pay ongoing spousal maintenance in addition to any child maintenance that is assessed by the Child Maintenance Service, both as an interim payment until an overall financial settlement has been reached and afterwards on a long-term basis. Below are some of the key questions that I am frequently asked.

What is spousal maintenance?

Spousal maintenance is a monthly payment that is made by someone (the payer) to his or her former spouse (the payee) following a divorce or dissolution.

When can I start to receive spousal maintenance?

You can start to receive spousal maintenance during the divorce proceedings and this is referred to as interim spousal maintenance (also known as maintenance pending suit). Once your financial settlement is agreed, (either through negotiation or a final court decision) longer term spousal maintenance will begin. It is also referred to as “periodical payments”.

How much can I expect to receive?

How much spousal maintenance you receive very much depends on your needs and your ex-spouse’s ability to pay. To work this out, the court will determine what reasonable outgoings you (the payee) have and what income you receive from other sources to cover them.

They will look at earned income or rental or investment income, state benefits, tax or universal credits and any child support payments. They will then look at what income your ex-spouse (the payer) has and how much of your reasonable outgoings they can afford to cover.

The shortfall between the payee’s outgoings and income can be met by spousal maintenance, provided the payer has sufficient disposable income (after payment of his/her own reasonable outgoings) to meet the maintenance. The court can also consider what steps the payee should take to increase his or her earning capacity to maximise their income.

There is no set formula and the court has to carry out a balancing exercise between the payee’s needs and the payer’s ability to pay. The court will consider the standard of living you both had before the marriage broke down, how long you were married for, the ages of any dependent children and the impact this might have on the payee’s ability to find employment.

An assessment of “reasonable outgoings” means that the court may not accept all the payee’s claimed items of expenditure nor may it accept that all the payer’s outgoings are necessary. ?

Who decides how much maintenance I will receive?

Your solicitor will advise you of how much maintenance a judge is likely to award you, and this will inform any negotiations you have. If you are unable to agree on an amount either directly or through solicitors and your case goes to court, the judge will decide how much you should receive.

Alternatively, you could use arbitration to get a decision as to how much maintenance should be paid. This can either be dealt with in isolation if all the other financial issues have been agreed or together with any other issues that need to be sorted out such as dividing up the property or capital issues.

Ideally you will be able to reach an agreement without a judge or an arbitrator having to decide the outcome. In this case you can consider mediation to discuss the issue or your lawyer can suggest a Private FDR to get the opinion of a neutral barrister or senior lawyer to help you to reach a settlement.

How long can I get maintenance payments for?

Maintenance is either for a fixed term (which can be extended in rare circumstances) or for the spouses’ joint lives, meaning until either the payee or payer dies. It is expected that a joint lives order will end at some point before one party dies. They are made because the court cannot be certain when the payee will be able to live without the maintenance.

The onus is therefore placed on the payer to apply to the court to end the maintenance in the future. At any point during the maintenance term, either party can apply to the court to vary the amount upwards or downwards or have it stopped altogether. The maintenance can be varied if there is a change in circumstance of either the payee or payer i.e. illness, redundancy, a reduction in income. If the payee remarries, maintenance stops automaticall

What happens if my ex-partner has problems keeping up the payments?

You can take enforcement action against your ex-spouse if he or she is not paying the correct amount and is falling into arrears, for example, getting an order that his employer deducts the amount due to you from salary so that you receive it automatically. This is called an attachment of earnings order. Your ex-spouse can also apply to the court to reduce the maintenance if he is struggling to make the payments. Get in touch Maintenance can be a complicated issue.

The best advice is to speak to a family lawyer at an early stage so that you can control your case in a thorough and proper way before any financial decisions are made. Theo Hoppen is a Senior Solicitor at Stowe Family Law in Harrogate. He works across all areas of family law with specialisms in divorce, cohabitation and nuptial agreements. Theo also regularly advises clients on inheritance disputes and claims against estates.

This article originally appeared on the Stowe Family Law Blog

PHOTO CREDIT: FLICKR ALPHA STOCK IMAGES

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