What is Spousal Maintenance?
Payments made from income after divorce are called spousal maintenace. What is this?
When dealing with the financial consequences of divorce, along with reviewing how assets and pensions will be divided, it is important to consider the income that each party will have and whether one of them needs to pay money to the other so they can pay for their monthly outgoings. The court have a duty to consider a clean break which will bring an end to all income, capital and pension claims between the parties, but sometimes this is not appropriate or possible.
In every case where spousal maintenance may need to be paid the relevant questions are how much should be paid and for how long.
Spousal maintenance is a payment that is made because one spouse does not have enough income to pay their outgoings and the other spouse can afford to make a payment. This is not the same as child maintenance which is a separate payment, normally calculated by reference to formula applied by the Child Maintenance Service for parents.
The amount of the spousal maintenance payment will be decided by reference to the income shortfall one spouse may have, after considering what it is reasonable to expect them to earn for themselves and after a careful assessment of their list of outgoings. This must be crossed checked against the income and outgoings of the other spouse to see if it is affordable.
Whilst spousal maintenance is payable it is always variable because circumstances change. If the person paying maintenance loses their job they will want the payments to be suspended until they get a new job. If the receiving spouse starts earning more income then the maintenance may need to be reduced.
There are various types of spousal maintenance that can be ordered on divorce which can be explained as:-
1. Fixed term Spousal maintenance - a monthly amount of maintenance that is paid until a fixed date. The person receiving the maintenance can legally apply for it to be paid beyond that date if an application is made before the payment period ends but it can be difficult to extend fixed term orders.
2. Fixed term Spousal Maintenance with a s.28(1A)bar - a monthly amount of maintenance that is paid until a fixed date. An application cannot be made for it to be extended.
3. Nominal Maintenance - a token maintenance figure(5p per year) which is there as a safety net for the receiving party to apply to increase to a substantive amount if their needs require it (and the other spouse can afford to pay it).
4. Joint Lives Maintenance - spousal maintenance paid every month until either the receiving or paying party dies. If the paying spouse dies before the spouse receiving the maintenance, claims can be made after their death against their estate to cover the ongoing maintenance.
It is important to highlight that if the spouse receiving maintenance remarries then spousal maintenance payments come to an end (but child maintenance continues).
Which maintenance option will be best will depend on many different factors. Sometimes, to assist with achieving a Clean Break, it can be possible to capitalise spousal maintenance, which would mean the maintenance is paid as a single lump sum if this is an affordable and realistic option.
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