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Spousal maintenance: overview

The amount of spousal maintenance you're entitled to (if any) depends on your individual circumstances. The court has wide discretion to decide what's fair, which means it's difficult to say exactly how much you will get.

After complete financial disclosure, however, an experienced family law solicitor can usually provide a good estimate.

You and your ex can of course agree spousal maintenance independently. But, if that's not possible, you can ask the court to make a decision, which is called applying for periodical payments.

People rarely apply for periodical payments in isolation. Invariably they ask the courts to decide a wide range of financial issues, of which periodical payments / spousal maintenance constitutes merely one part.

An application for a wider income and asset split is called an Application for Ancillary Relief. Either party can apply for this after the divorce petition has been filed using HM Court Service Form A.

It is important to note that you cannot obtain a final court order on your Application for Ancillary Relief until the Decree Nisi (the first stage of the divorce process) is pronounced. And the order cannot come into force until the Decree Nisi has been made Absolute (the final stage of the divorce process). This all takes a long time. So, if you are struggling financially, the law allows you to apply for an interim order – for Maintenance Pending Suit. You can make this application using Form A at the same time you apply for ancillary relief.

Procedure

A. First Directions Appointment

Once the Application for Ancillary Relief is received, the court will schedule an appointment with a judge to consider the case. This is known as the First Directions Appointment. The parties then exchange financial disclosures so that by the time the First Directions Appointment comes around both parties know about each other's finances and the matters about which they agree and disagree.

If the parties do not settle beforehand, they must both personallyattend the First Directions Appointment. If one party fails to attend, they may have to pay the other party's costs of the wasted appointment. At the First Directions Appointment, the judge can do any of the following:

  1. Give further directions on how the case will proceed. For example, the judge might need further information and adjourn the hearing to allow time to collect this.
  2. In certain circumstances and if both parties agree, make a final order in respect of the application.
  3. Refer the case to a Financial Dispute Resolution hearing.
  4. Adjourn the case so the parties can go to mediation.

If the parties fail to settle, in most instances the judge will refer the case to Financial Dispute Resolution.

B. Financial Dispute Resolution and Final Hearing

In the vast majority of cases the parties hammer out a deal at or before Financial Dispute Resolution. They then ask the court to issue a Consent Order reflecting the terms of their agreement. The court should approve the order if it is in the best interests of the parties (and their children, if they have any).

If the parties cannot agree, however, the court will fix a date for a final hearing to hear arguments from both sides and then impose a settlement in a court order. (Note the judge for the final hearing will not be the same as the one presiding over Financial Dispute Resolution.)

Factors taken into account

The court takes eight factors into account in deciding whether or not to award spousal maintenance, namely:

  1. your respective present and future income, earning capacity, property and other financial resources;
  2. your respective financial needs, obligations and responsibilities;
  3. your standard of living before the marriage broke down;
  4. your age and the duration of the marriage;
  5. any disabilities;
  6. your respective contributions to the welfare of the family, including looking after the home or caring for the family;
  7. your respective conduct;
  8. any benefits a party will lose after divorce.

Periodical Payment Order

If the court issues a Periodical Payment Order, it will stipulate that one party must pay money to the other every month. It may also issue a Secured Periodical Payment Order, which secures payment on a particular asset so that if the party who is supposed to pay maintenance dies or defaults, the other party can demand the sale of the asset to fund future payments.

Clean break

Where possible, however, the court prefers to order a 'clean break' rather than continuing payments for spousal maintenance. A Clean Break Order ends all claims the parties may have against each other on all financial matters except child maintenance and aims to make the parties financially independent.

As part of the clean break the court may order one party to pay a specified sum of money to the other as compensation for their ownership interest in an asset or assets. The court may also order an adjustment in the ownership of an asset, usually from joint ownership into one party's sole name; or that an asset be sold (and dictate how to share the proceeds).

Alternatively, the court could order a clean break after a specified period of spousal maintenance. The aim of such an order would be to give a party fair and reasonable time to adjust to separation and end their financial dependence.

Remarriage or Death

The obligation to pay spousal maintenance comes to an end if the receiving party remarries or dies.

Summary

Spousal maintenance is usually a very complicated and emotive subject between the spouses and you should consult a solicitor as a matter of priority. This is certainly not an area where a do-it-yourself approach is recommended.

Source:
FindLaw
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