The Ultimate Guide to Spousal Maintenance
If there is one subject that causes the most controversy in agreeing financial arrangements as part of a divorce, it is perhaps the matter of spousal maintenance.
And there is a lot of confusion around when it should be considered; how much should be paid and for how long. In addition to this the advice given by solicitors can vary remarkably on this subject.
In this ultimate guide, we aim to dispel some myths, explain what spousal maintenance is in plain English and reiterate, that as a complicated area of family law, you should always seek independent legal advice on the matter.
10 Facts About Spousal Maintenance Everyone Should Know
- Spousal maintenance is not the same as child maintenance. The latter is statutory and the amount to be paid is determined by the Child Maintenance Act. There’s an online calculator that’s very easy to use. By contrast, there’s no precise calculator or formula for spousal maintenance.
- If you don’t have an income after you’re separated from your spouse, you may be entitled to a maintenance claim so you can deal with finances. This is based on need and it can be applied for as an emergency measure in some cases.
- Grounds for divorce won’t affect your ability to claim spousal maintenance because the behavior that caused the marriage to end doesn’t affect finances. That can occur, but it’s very rare.
- Even if the court decides that one party will provide for the other through maintenance, this order is not usually for life. The maintenance order will stand for a period of time, which depends on the circumstances of the individuals involved.
- To determine the level of spousal maintenance, the court will consider the income of both parties as well as the standard of living they enjoyed as a couple.
- The award of spousal maintenance will depend on the other party’s ability to make the payments. Income from both parties is considered because it’s very difficult to divide the assets of one family to meet the needs of two separate households.
- If there’s a huge difference in the incomes of both parties, lifestyle will be taken into account to ensure a fair division of assets.
- Spousal maintenance can be varied at any point if circumstances change. It’s important to figure out how to meet your needs and achieve a fair settlement once you’re separated.
- Family mediation will need to be considered in most cases if you cannot agree and wish to apply to the court.
- If you’re paying the spousal maintenance, remember you can apply to vary it. If you do, the court will reconsider if it’s possible to have a clean break. They will consider your assets and income in order to make any decision.
What is spousal maintenance?
Spousal maintenance is a payment that’s paid by a wife or husband to their former spouse as part of their divorce. Usually, it is paid every month and it can last for either a defined period or, in increasingly rare cases, for the rest of your former spouses’ life. The latter is known as a “joint lives order.”
Why should I pay spousal maintenance when we are no longer together?
When you marry you are committing to each other financially as well as emotionally. The law on divorce is based on your future needs. It is generally accepted that where one spouse has a much higher income than the other, there may need to be a period of ongoing financial support in order to avoid undue hardship or affect the well-being of any children.
Spousal maintenance will last for as long as you can both agree that it is required, or if you cannot agree, by a court order.
Spousal maintenance can be terminated if the recipient of the maintenance gets married again or enters into a civil partnership. It also ceases if either party passes away. Spousal maintenance will usually be paid until the spouse can either support themselves or their financial needs are reduced, for example when the children finish school or university, or they leave home.
Are spousal maintenance payments guaranteed?
No, they are not fixed or guaranteed. A change in circumstance can cause the spousal maintenance to be either varied or dismissed by the court as well. For example if you were to cohabit with a new partner, receive a lump sum that means you can now support yourself, or if the person paying loses their job or becomes ill. But there could be many circumstances where a change in the payment is either agreed to ordered by the court. If you have a consent order in place and your ex just simply refuses to pay, then you can have this order enforced through the courts.
How long does spousal maintenance last for?
Spousal maintenance will last for as long as you can both agree that it is required, or if you cannot agree, by a court order.
Spousal maintenance can be terminated if the recipient of the maintenance gets married again or enters into a civil partnership. It also ceases if either party passes away. Payments will usually be made until the spouse can either support themselves or their financial needs are reduced, for example when the children finish school or university, or they leave home. You can agree that the term over which the payment are made is fixed or extendable and if the term is extendable, for how long it could be extended for. This may take into account future unknowns, such as if your children go on to university.
How do we decide on the amount of spousal maintenance?
When it comes to calculating spousal maintenance, there is no set formula to follow – unlike child maintenance. Usually, the amount to be paid is determined by the couple or by the court after considering the circumstances. The court will decide both the amount to be paid and the length of time. The amount to be paid is very much decided on both your reasonable budgets moving forwards.
Case Study 1 – Real example where spousal maintenance agreed
Elaine and Mark have been married for 17 years and have two children together, Phoebe 14 and Jacob 12. Mark runs his own printing company and Elaine is a home-maker. Before the children arrived, Elaine was a manager for a large pharmaceutical company. They have already agreed that Elaine will remain in the former marital home and it will be sold in 10 years’ time. However to meet her reasonable budget moving forwards, Elaine has a deficit each month of £1500. This is after Mark has paid child maintenance.
Mark is renting nearby, but has an excess of his monthly budget of £2,000 after his reasonable need are met. They agree that Mark will make up the £1,500 shortfall by way of a spousal maintenance order. This will be paid for a term of 6 years, until Jacob is 18. They agree the term can be extended if Jacob goes on to university.
How are the budgets calculated?
The level of maintenance is determined by considering the daily financial commitments of both parties as well as any child maintenance obligations, if they apply, to determine how they can be met with the resources available to the husband or wife responsible for paying spousal maintenance.
It is understood that after a divorce, some degree of budgeting and adapting to a reduction in lifestyle may be required, from both sides. But if there is a substantial shortfall on one sides’ reasonable budget and a surplus on the other sides – then it is likely spousal maintenance would come into play.
The cost of housing, utility bills, council tax, school costs, clothes, holidays, presents, debt repayments, subscriptions and more will all make up a monthly budget. Annual costs (for example a holiday) are usually divided by 12 and spread across each month. Every families’ budget is different and what would be considered reasonable for one persons’ needs may be very different to what is reasonable for another persons’ needs. This is where previous lifestyle would be taken into account. If you were paying for private education and healthcare before your divorce, it may be considered reasonable to continue these post- divorce, if the household budgets allow.
What is a Nominal Maintenance Order?
Nominal maintenance orders are issued in favor of one or both of the parties. The order states that they have enough income to cover their needs presently, so no substantive maintenance is required at the moment – though it may be required in the future.
This order is often granted to the parent who acts as the primary caretaker of the children of the marriage. A nominal maintenance order acts as a safeguard against any change in circumstance that may happen in the future and cause the parent to become unable to meet their financial needs.
In which case, they may ask the court to increase the nominal order from an annual amount of £1 per year (not actually paid) to a more substantial amount. But if both parents share the care of the children of the marriage, the nominal maintenance order can be reciprocal between the parents. It’s rare for this kind of order to be varied to significant maintenance, which is something to keep in mind. But it works as an insurance policy and shows the court you have considered the future possibilities and children’s needs in your agreement. Bear in mind, you cannot get a clean break with a nominal maintenance order.
Yes, either of the parties involve can apply to the court and vary the spousal maintenance to reduce or increase the amount – but this can only be done if their circumstances have changed. For instance, the paying party’s income may have reduced and the recipient’s financial needs may have changed or their income may have increased so they don’t need as much maintenance as before.
At any moment, either party can apply to the court to have the maintenance capitalised. This means that the payer makes a lump sum payment instead of paying on a monthly basis. This would usually be done if the payer receives a large sum of money, e.g. an inheritance, windfall or they sell a business.
Both parties have the obligation to inform the other person of any significant change in circumstance of financial needs and should give as much notice as possible to any change.
Can I Stop Paying Spousal Maintenance?
As mentioned before, spousal maintenance will automatically be terminated if the recipient gets married again or if either of the parties passes away. Once spousal maintenance has been established, the payer can’t stop the payments until the agreed period of maintenance payments is over.
What you can do instead, is try to mediate with the other party if your circumstances have changed. If you cannot agree, you can apply to the court so the maintenance amount is reduced or you can have the spousal maintenance terminated if there’s an adverse change in financial circumstances on your part or if the recipient’s financial circumstances have improved. But remember there is no guarantee and the court will have to agree with you. To terminate spousal maintenance, the court will consider whether the recipient can make do, without the maintenance and avoid undue hardship.
What If I Lose My Job and I Can No Longer Pay Spousal Maintenance?
If you lose your job and it’s impossible for you to pay spousal maintenance, you should reach out to the recipient so you can come to an agreement. In some cases, it may be necessary to apply to the court to get the spousal maintenance suspended for as long as you’re unemployed. If you find alternative employment with a lower or higher salary, either party can apply to the court to get the existing order varied.
If the recipient of the spousal maintenance has a job, whether you should still pay the spousal maintenance depends on the circumstances. If the recipient has found a job that allows them to cover their needs, spousal maintenance may be terminated. Another possibility is getting the maintenance reduced or terminated by applying to the court, which will determine whether the receiving party would be able to adjust without experiencing undue hardship.
If the Recipient of the Spousal Maintenance Is Living With a New Partner, do I Still Have to Pay?
If the recipient of the spousal maintenance is co-habiting with a new partner, it doesn’t cause the spousal maintenance to end. Cohabitation is more uncertain than marriage and people who cohabitate can’t make the same financial claims against one another if the relationship ends. Though cohabitation won’t cause the spousal maintenance to automatically end, it may be appropriate to get it reduced and you can apply for mediation and ultimately to the court to end it, but you should seek legal advice before you decide to take such action.
In What Circumstances Is Spousal Maintenance Ordered By the Court?
Spousal maintenance is appropriate when one of the parties doesn’t have sufficient assets or income to cover their daily needs. For example, if your former spouse has a lower income than you or is unable to become self-sufficient right away because they didn’t work for most or the entirety of the marriage.
“Needs” can be interpreted generously and it’s done with reference to several factors, including the assets that are available for distribution and the standard of living that was established in the marriage. It’s also important to note that the priority of the court is to make sure children are taken care of.
Who is Entitled to Receive Spousal Maintenance?
When any couple are in the middle of a separation and they’re getting a divorce, either party is entitled to receive spousal maintenance. Several factors need to be considered, such as the duration of the marriage, whether the parties are employed, their age, who’s taking care of the children, and whether they can manage financially without receiving spousal maintenance.
We were not married but were co-habiting for many years. Am I still entitled to spousal maintenance?
No, in order to make a claim for spousal maintenance, you need to have been married. You can claim for child maintenance if you were not married any you have children. You can of course agree any ongoing payments between you as a separating couple, but if you cannot agree, then you cannot make a claim for spousal maintenance through the courts. There are other claims you can make in specific circumstances, such as under Section 1 of the Children’s Act. You should take legal advice if pursuing this as an option.
Am I entitled to spousal maintenance?
The conditions in which spousal maintenance is paid will vary depending on the marriage because each marriage and situation is different. If a couple has been together for a long time and one of the parties decided to give up work to stay home while the other furthered their career, you may be at a financial disadvantage when you divorce. Because you can’t financially support yourself right away, perhaps after putting your career on hold for so long you need financial help to live, until you are able to support yourself again.
Here are a few questions that will help you determine whether you’re entitled to spousal maintenance or not:
- What are your financial needs? What’s your income potential? Can you meet your financial needs without any assistance from your ex?
- Have you been married for a long time and you quit your job to focus on being a homemaker?
- At your age, is it possible to establish a career that will allow you to maintain your lifestyle or would it be difficult?
- Would you benefit more from receiving a lump sum instead of monthly payments?
- Are you willing to take your case to court if your ex doesn’t agree to provide spousal maintenance?
- When are your needs likely to change? Do you have children under 18 who need support? Can you re-train to get a new career or set up a new business?
- Do you plan on getting married again in the near future or considering cohabiting?
Factors taken into account when looking at spousal maintenance
- Your reasonable budgets moving forwards
- The age of any children
- The needs and resources required to raise the children
- The ability to work again, re-train or set up a business
- The lifestyle enjoyed during the marriage
- Both your ages and when you are likely to retire
- If you are intending to co-habit or remarry
- The length of the marriage
- Whether you want get a clean-break financially
Factors not taken into account when looking at spousal maintenance
- Who is to blame for the marriage ending
- The grounds used for a divorce
- Who contributed to what during the marriage
- Whose decision it was to have children and/or pause or stop a career
- Whether you may get support from other family members or an inheritance in the long term future
- The income of any new partner they are not co-habiting with or planning to co-habit with at this time
How to Claim Spousal Maintenance
Spousal maintenance can be agreed upon by both parties, but if your ex is unwilling to agree, you can ultimately apply to the court and ask them to consider your case. They will decide whether you’re entitled to it or not. If they determine you are indeed entitled to spousal maintenance, they will issue a court order and your ex will be compelled to comply. In most cases family mediation must be at least considered by way of attending a MIAM appointment before you can apply to court, unless one these 15 exemptions apply.
My ex is refusing to pay spousal maintenance. How can we reach an agreement on spousal maintenance payments?
There are 10 ways to reach an agreement on your finances as part of a divorce or separation. You can view them all here or download the full pdf below:
Our blog “Will it look bad if I don’t attend mediation?” goes into more detail about your options as well.
The 10 methods are:
- Talk between yourselves
- Use a family member or friend to help your discussion
- Use a divorce negotiator
- Use family mediation (you usually need to consider this in order to go to court)
- Use shuttle mediation
- Ask for an independent barrister review
- Use collaborative process / Hybrid mediation
- Use solicitor led negotiation
- Go to arbitration
- Apply to the family court for an order
Can we get a clean-break when spousal maintenance is paid?
No, you cannot get a clean break with a spousal maintenance order. This is because the amount of maintenance could be varied or capitalised into a lump sum at any point after the divorce. Due to this, you should always look at whether the amount of spousal maintenance can be paid by a lump sum. This would then allow a clean-break between the couple.
Case Study 2 – Capitalised Spousal Maintenance
Anik and Radha have agreed that Anik will pay £300 per month in spousal maintenance for five years, whilst Radha re-trains as a counsellor and sets up her own counselling service. They have already agreed the division of the assets and looked at their monthly budgets. However they are keen to achieve a clean-break to provide certainty in their finances and to avoid and future disputes.
Anik and Radha therefore agree to capitalize the payments from Anik’s savings and he transfers £18,00 (£300 x 60 months) to Radha. Radha puts this into a savings account and draws down the amount she needs each month to balance her budget over the next few years. They are granted a clean break consent order through the court.
We have already divorced, can I still make a claim for spousal maintenance?
Yes, you can make a claim at ay point after you divorce, unless you already have a clean break consent order in place.
What is the difference between spousal maintenance and alimony?
There is no difference. Spousal maintenance is the legal term used in England and Wales, whilst alimony is a term, usually used in the USA, to reflect the same thing.
A Global Maintenance Order includes an element for child maintenance within the payments to be made. This is because the court does not hold the jurisdiction for child maintenance, the Child Maintenance Service does instead. It is a complicated area of law and if you are looking at asking for or agreeing a global maintenance order, you should take independent legal advice.
Does spousal maintenance affect my income or tax?
You do not pay tax on spousal maintenance income received, as the party paying it will already have paid tax on the money they have. It can have an impact on the amount of universal credit and certain other benefits you may be entitled to. You can use the online calculator here to see what impact spousal and/or child maintenance can have on your entitlement to make a claim for additional benefits and support.
Can my ex hide their income to avoid paying spousal maintenance?
Technically, yes they can. But if that is the case, it is likely your case will go to court. At court they will need to complete a full financial disclosure on a Form E to show their incomes and they sign this off to be true and accurate. If they are not, then they are committing fraud and the court is likely to take a dim view of such behaviour when looking at awarding legal costs.
What happens if I want to live with my new partner after divorce
You can of course live with your new partner. However the party paying the spousal maintenance could argue that they should contribute towards your new household budget and therefore your needs for maintenance are potentially reduced or removed. This needs to be considered carefully as co-habiting with a new partner does not give you the same protections as if you were married to them.
What happens if my ex has children with their new partner?
Nothing needs to happen, but if they are no longer able to afford the spousal maintenance payments, because their own needs have changed, they could ask that the amount paid across is reduced. Ultimately if you cannot agree, it would be up to the court to decide, but the court must prioritise any children in their decision, irrespective of which relationship they are from.
Spousal maintenance is an area where many clients find it difficult to reach an agreement. It should be at least considered by you both as part of your discussions – and then dismissed if need be. There is no point reaching an agreement on the division of your assets, if one of you then has your house re-possessed because you cannot afford to live moving forwards.
It is important to have all the information, so you can make sure everything you agree is fair and sustainable. If you are struggling to reach an agreement between yourselves, spousal maintenance is an area which is very good for family mediation or an independent barrister review if you are struggling to reach agreement. Both options will leave more money in the pot for your futures than by litigation through the courts.
Mediate UK can help with reaching agreements on spousal maintenance variations and on helping you reach a fair agreement on all your finances as part of a divorce or separation – we are the top-rated family mediation service in England & Wales.