What is spousal maintenance?
After a divorce or the end of a civil partnership, one partner will often pay the other spousal maintenance. Roles within the marriage may have changed over time, whether that be due to children or career changes, so spousal maintenance is there to ensure that both parties can manage financially after divorce. The courts’ main aim when it comes to spousal maintenance is for both parties to eventually be financially independent. Maintenance payments are different and separate from child maintenance payments.
How is it calculated?
Spousal Maintenance is not calculated by any set formula. This means that every arrangement for maintenance payments will be different. Maintenance payments are calculated bearing in mind the financial ‘needs’ of the recipient. Currently, these ‘needs’ are interpreted generously by the courts. Courts will also generally consider:
- The financial position of both parties
- Standard of living enjoyed during the marriage
- Employment of both parties and earning power
- Potential/ability to become financially independent (e.g. through getting a new job)
- Whether there are children within the marriage
- Care and welfare of children (BUT spousal maintenance should not cover child maintenance)
- Length of the marriage
- Age of the partners
Do I need to go to court?
You do not need to go to court to come to a decision about spousal maintenance. Plenty of former partners have informal agreements over maintenance payments. If you and your ex-partner can agree on what maintenance is needed and come to an arrangement, then you could be saving a lot of money by avoiding court. However, it is often recommended to hire a solicitor to advise you on what you are entitled to after a divorce. Furthermore, going to court can ensure there are procedures in place to protect you if circumstances do change after a divorce.
Different types of maintenance and court orders
There are a few different types of Spousal Maintenance to be aware of. These will be used and given through court orders in different circumstances. What Order you receive will depend on your financial status as well as the other factors outlined above.
Clean Break
This, in most cases, is the most preferable type of maintenance payment. It separates the financial ties partners have to each other as quickly as possible. Here, one partner will ‘buy out’ the other, usually by paying them a lump sum after the divorce. There is often a large amount of capital available after a divorce, whether from selling a house, joint savings accounts, or other assets. Capital from these can finance a clean break.
If it is possible to have a clean break, courts will push for one. If a clean break happens, no longer-term spousal maintenance will be paid. The only way you can make sure that your ex-partner does not make financial claims against you in the future is by getting a court order. This must set out financial plans and specify the clean break. In England and Wales, a court can order a ‘buy out’ against your wishes, but in Northern Ireland, you and your ex-partner have to agree to the buyout.
Term Order
If a marriage is short (has lasted less than 5 years) then spousal maintenance is usually paid through a ‘term order’. The court determines a period for which spousal maintenance should be paid, and how much should be paid. These are usually monthly payments. The ‘fixed’ nature of them is designed to encourage parties to move towards financial independence.
Fixed-term Orders can be increased or decreased in time on appeal. The amount to be paid can also change if a partner goes to court. This can happen when the circumstances of either partner change. For example, if a dependent gets better-paid employment, the party paying maintenance might argue they should pay less.
Joint Lives Order
A Joint-Lives Order can be imposed if a court feels it is unlikely that one partner will ever be financially dependent. For example, if one partner has been in charge of the household for a long time, it might be challenging for them to achieve financial independence. Similarly, if a couple has young children, the primary caregiver may have to look after them full-time after divorce. In both cases, the court would most likely give a Joint Lives Order for spousal maintenance. Again, if circumstances were to change, this order might be ended or amended by the courts further on down the line.
Nominal Order
Sometimes spousal maintenance is not actually needed for both partners to keep their standard of living. In these cases, the courts will usually issue a nominal order in favour of one of the partners. Often it will be granted in favour of a primary caregiver (usually the mother). A Nominal Order acts as a safeguard against any future changes which might mean they would be unable to meet their financial needs. Like the other court orders, the amount and time that the order is for can be subject to change on appeal.
If the care of any children is shared between parents, the nominal order can be made mutual between them.
When do I stop paying?
- Spousal maintenance can be and is usually stopped if one partner dies. However, if you are receiving spousal maintenance payments, it may be worth insuring them. This means if your ex-partner were to die, you would still receive maintenance income.
- The party paying spousal maintenance could go to court if financial changes in either party’s lives might potentially change how much they pay. The court will then decide if the recipient of the maintenance can ‘adjust’ to living without spousal support.
- If the party receiving spousal maintenance remarries, the payments will stop. But, if the party receiving maintenance payments is ‘cohabiting’ with someone else, this does not legally stop spousal maintenance. Instead, the person paying the maintenance would need to apply to the courts if they feel they should no longer be paying.
The law surrounding spousal maintenance payment can be complicated, and the court process tough. The Law Superstore is here to help you find the perfect solicitor for you during and after your divorce. Through us, you can take some of the pressure off yourself and get the best outcome in the process.
