Q What is spousal maintenance?
Spousal maintenance is a monthly payment made to you by your former spouse after you are divorced. It bears no relation to child maintenance, as it is designed to support you and not any children of the marriage.
You can ask for spousal maintenance as part of your divorce settlement, if your income or assets are insufficient to meet your day-to-day needs and you are unable to support yourself immediately after the divorce. This might apply if you have a much lower income than your ex, or if you have not been working. Q How is spousal maintenance calculated? Unlike child maintenance, there is no set formula for calculating spousal maintenance. The court will simply consider the ‘needs’ of your particular case and from that make a decision as to whether you should be paid spousal maintenance and, if so, how much and for how long.
What your individual ‘needs’ are, may be widely interpreted. The court will take into account not only yours and your ex’s available resources immediately following the divorce, as weighed against your current financial commitments (including the expense of providing for children), but also the standard of living you enjoyed during the marriage.
On account of this, the amount of spousal maintenance you are given can differ significantly from case to case – so you should always take specialist advice. Q How long will I get spousal maintenance for? The court has a duty to give both you and your former spouse a clean break wherever possible, so they will always seek to bring an end to your financial dependence upon your ex quickly, if they can.
If you have been off work because you have been raising children, the court may order spousal maintenance for an intermediate period of between two and five years, to allow you to re-train or to re-enter the workplace. This is called a ‘term order’, or ‘term maintenance’. Generally speaking, term orders can be extended if circumstances allow, although sometimes the court will put a prohibition on this, so do to check how your order is worded.
Alternatively, where you have been out of work for a significant number of years, the court may order maintenance for the period of you or your former spouse’s life. This is known as ‘joint lives’ maintenance. Q Can spousal maintenance be varied or ended? Spousal maintenance ends if you re-marry or if you or your former spouse dies. But it can also be varied under certain circumstances.
If you or your ex has a change in income, or if your financial needs change, either party may apply to the court to vary the amount of spousal maintenance you are paid. An application can be made to vary the payment downward as well as upward, and there is an ongoing duty on both parties to inform the other of any material change in their circumstances.
This means that, if your ex loses their job, they can apply to the court for the maintenance order to be suspended while they are out of work. Equally, if your earnings increase sufficiently it may be that on application to the court the maintenance payments are reduced or brought to an end altogether. When considering whether maintenance can be ended in this way, the court will consider whether you can adjust without undue hardship.
In addition, either party may apply to the court at any time for the maintenance to be capitalised. This means that your ex can make a lump sum payment to you, in lieu of regular maintenance payments. Q What if I cohabit with a new partner, or re-marry? Spousal maintenance ends when you re-marry, however, it does not automatically end when you cohabit with a new partner although, again, you will need to look at the terms of your court order, as some do provide for this.
One final note on cohabitation: while spousal maintenance will not automatically end when you live with somebody, it may be appropriate for your maintenance to be reduced or ended in light of your cohabitation. In this circumstance, your ex can make an application to the court for a variation or termination of your spousal maintenance agreement. If this happens, you should always take specialist legal advice.