The expert solicitors at Higgins Miller deal with family law cases, which means helping people to cope with stressful situations such as handling wills and probate after the death of a loved one, working through the process of adoption and settling children disputes. We also work on divorce cases, and one of our areas of expertise is spousal maintenance.
When couples get divorced it is sometimes the case that one spouse has much higher income than the other. In cases such as these, the courts may award spousal maintenance to the spouse with the lower income, if it feel that this is the only way that spouse will be able to support themselves. Spousal maintenance of this kind is occasionally awarded for life, but often comes with a specified term, ending in many cases upon retirement if a pension kicks in.
Spousal maintenance will end if the spouse in question remarries, although not always if they simply cohabit with someone else. If circumstances change sufficiently then the amount of spousal maintenance initially awarded by the court can be varied by a Court Order. If you’re going through the process of divorce and wondering how you will be able to manage financially in the future, our expert solicitors will be able to talk you through the process of seeking spousal maintenance and explain whether or not you are likely to be eligible.
In simple terms, spousal maintenance usually becomes an issue if one spouse earns a lot more than the other, and the party seeking spousal maintenance would not be able to support themselves on the income they have. Applications for spousal alimony are usually made during the divorce process itself, although it is possible to make an application following a divorce, as long as the parties have not agreed a financial ‘clean break’ in return for a one-off lump sum payment.
When working out whether a client is likely to be awarded spousal maintenance we have to take into account the following factors:
- How long were the couple married?
- Are each of the parties working?
- How old are the parties?
- Who will be looking after any children involved?
- Could both parties manage in financial terms without spousal maintenance?
Spousal maintenance cannot be claimed by one half of an unmarried couple, no matter how long they may have been cohabiting for, and is separate from child maintenance or support. The circumstances of each spousal maintenance claim will vary because every marriage is different, but we frequently deal with cases in which one spouse gave up work to raise the family and run a home while the other developed their career and earned the family income. In a scenario such as this the spouse who stayed at home may feel that they are entitled to spousal maintenance when the marriage ends on the grounds that they are unable to support themselves using any income they have from other sources, and that this situation arose as a result of them ‘sacrificing’ their earning power in order to raise a family. A client may be entitled to spousal maintenance if they meet the following criteria:
- Their financial needs cannot be met by their potential income
- The marriage lasted a significant period of time, during which the client gave up work to support their spouse and/or family
- The client is now at an age which means that establishing a career capable of supporting the kind of lifestyle to which they have been used will be difficult
- The client is willing to go to court to seek spousal maintenance if the other party doesn’t agree to pay
We would also need to ascertain whether the client would be better off seeking a one-off lump sum payment rather than regular monthly payments. This could be the case if the party making the payments loses their source of income or pre-deceases the party claiming spousal maintenance. Another advantage of opting for a one-off payment is that it creates a sense of certainty, with both parties sure that no further claims can be made, although, a negative of this approach is that the lump sum can never be increased, even if the circumstances of the recipient change for the worse. When deciding which approach to take we discuss all options with a client and base our advice on our expertise and experience of dealing with similar cases.
In many cases, spousal maintenance is negotiated as part of the divorce settlement, as a voluntary agreement between the parties. This is always preferable as it means the financial aspect of the divorce can be resolved quickly and with a degree of certainty. If an agreement is not possible, however, an application for spousal maintenance will need to be made to a family court. The court will decide whether spousal maintenance should be paid and if so how much, before making a financial order. There is no hard and fast formula for calculating spousal maintenance, and the court will decide the amount awarded on the basis of the needs of the recipient, and their own ability to earn an income. Once an amount has been agreed the court will decide on the duration for which spousal maintenance will be paid. This depends upon the circumstances of the case – for example, if a pension is in place then spousal maintenance may stop upon retirement, while in some cases it will be paid for a set number of years – known as a ‘term payment’ – while the recipient has the chance to increase their own earning capacity. The term could be set, for example, to cover the period during which any children of the marriage are still minors.
The amount of spousal maintenance will be calculated to achieve a balance between what the recipient reasonably needs and what the party paying can afford. Contrary to what people often believe, there is no right for the spouse in question to have an equal share of any income, and the court will reach a decision which they think is fair to all parties given the circumstances of the marriage. The court will also expect the recipient to make efforts to maximise their own earning capacity as and when they are able.
If you’d like to find out more about seeking spousal maintenance please call us on 0161 429 7251 or email us at [email protected]. We’ve recently passed our Cyber Essential accreditation, something which demonstrates our forward-thinking attitude and determination to remain ahead of the competition. The first 20-minute appraisal is provided free of charge, and we’ll give you the first appointment for a fixed fee, so you don’t have to worry about how much our advice is going to cost. If you want to explore our wider charging system then please take a look here.