Fi­nan­cial sup­port af­ter a sep­a­ra­tion

Kapi-Mana News - - WHAT’S ON - ALAN KNOWSLEY

If you have sep­a­rated you may be en­ti­tled to re­ceive, or may need to provide, on­go­ing sup­port to your former spouse/ part­ner.

This is called ‘‘spousal main­te­nance’’ and it is dif­fer­ent to child sup­port.

The en­ti­tle­ment to re­ceive spousal main­te­nance, or li­a­bil­ity to pay, ap­plies not only to mar­ried/civil union cou­ples, but also some­times to de facto re­la­tion­ships.

Im­me­di­ately af­ter sep­a­ra­tion, in­terim spousal main­te­nance may be payable if one part­ner can­not meet their rea­son­able needs and the other part­ner has the abil­ity to pay.

‘‘Rea­son­able needs’’ does not mean sim­ply the ba­sics, such as food, cloth­ing and shel­ter. It is what is re­quired to main­tain the stan­dard of liv­ing that ex­isted while the par­ties were to­gether – es­sen­tially, the life­styles the par­ties were ac­cus­tomed to. To pre­pare a main­te­nance claim, the part­ner will need to pre­pare a house­hold bud­get, hav­ing re­gard to in­come they might be re­ceiv­ing, in­clud­ing any child sup­port, and work out what the short­fall be­tween in­come and out­go­ings is.

That short­fall would usu­ally be the amount of main­te­nance sought. Whether the other part­ner can pay is a sep­a­rate is­sue. Their stan­dard of liv­ing is also taken into ac­count. Be­yond the pe­riod when in­terim main­te­nance is paid (usu­ally only in place while the di­vi­sion of prop­erty is re­solved), fi­nal main­te­nance may be payable.

To es­tab­lish a claim for fi­nal main­te­nance, one part­ner must show the rea­son they can­not meet their rea­son­able needs is be­cause of: Child care obli­ga­tions. The abil­ity to be­come self­sup­port­ing ow­ing to likely earn­ing ca­pac­ity.

How func­tions were di­vided dur­ing the re­la­tion­ship (eg, one party work­ing and the other stay­ing at home).

Stan­dard of liv­ing while the par­ties were to­gether. Health rea­sons. The need to un­der­take ed­u­ca­tion/train­ing to be­come self-sup­port­ing. The in­abil­ity to earn as much as than the other part­ner be­cause of dif­fer­ent skill sets that ex­isted be­fore the re­la­tion­ship is not nec­es­sar­ily a rea­son for fi­nal spousal main­te­nance.

For ex­am­ple, if one spouse was a highly paid pro­fes­sional and the other had only ba­sic work skills, the dis­par­ity is not nec­es­sar­ily be­cause of the fac­tors the law al­lows to be taken into ac­count.

How­ever, if part­ners were of sim­i­lar earn­ing ca­pac­ity and one gives up their pro­fes­sion to raise the chil­dren, al­low­ing the other to progress their ca­reer, that could be the cause of the now ex­ist­ing in­come pro­duc­ing ca­pac­ity in­equal­ity. There is no set time­frame for how long main­te­nance is payable. There is, how­ever, an ex­pec­ta­tion that each part­ner will be­come self­sup­port­ing over time. That could be sev­eral months or sev­eral years. Fol­low­ing sep­a­ra­tion, a de­lay in ap­ply­ing for spousal main­te­nance may demon­strate an abil­ity to sur­vive with­out main­te­nance and there­fore dam­age the chance of a suc­cess­ful claim.

If the post-sep­a­ra­tion pe­riod will be eco­nom­i­cally dif­fi­cult, you should con­sider ob­tain­ing ad­vice as to whether you should ap­ply for main­te­nance.

The fi­nan­cial im­pli­ca­tions of spousal main­te­nance can make a big dif­fer­ence fol­low­ing sep­a­ra­tion, re­gard­less of whether you are the per­son re­ceiv­ing or the per­son mak­ing pay­ments. Col­umn cour­tesy of Rainey Collins Lawyers, ph 0800 733 484 or rain­ey­collins.co.nz. Send an email to aknowsley@rain­ey­collins.co.nz if you have a le­gal in­quiry. Our next free pub­lic sem­i­nar, on deal­ing with re­la­tion­ship prop­erty is­sues, will be on May 26, 12.15pm till 1.15pm. See our web­site.

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