A guide to spousal maintenance
Navigating the complexities of divorce can be a challenging journey, fraught with emotional and financial uncertainties. Among the many considerations, spousal maintenance is a critical one which can have a major impact on both separating parties’ financial futures.
Also known as alimony in some countries, spousal maintenance in England & Wales is designed to provide financial support from one spouse to another post-divorce, ensuring that the economic impact of the separation is manageable for both parties. This guide aims to explain spousal maintenance, offering a comprehensive guide to individuals undergoing divorce proceedings and highlighting the paramount importance of securing expert legal advice.
What is spousal maintenance?
Spousal maintenance is a financial arrangement, which may be entered into voluntarily or ordered by the court, where one former spouse is required to support the other financially for a period following a divorce. Distinct from child maintenance, which exclusively targets the well-being of children, spousal maintenance focuses on the needs of a spouse who may not be financially self-sufficient post-divorce.
The primary aim is to mitigate the unfair economic disparities that can arise from the dissolution of a marriage, enabling both parties to continue their lives with a fair and equitable settlement.
Who is entitled to Spousal Maintenance?
There is no automatic entitlement to receive spousal maintenance (also known as spousal support) when a couple divorces or separates. Instead, spousal maintenance is determined based on a variety of factors that reflect the financial needs and resources of both parties involved.
Whilst this may only be possible in some cases, the courts are duty-bound to consider whether any spousal maintenance claims can be compromised by way of a capitalised lump sum (rather than monthly maintenance payments), so as to achieve what is known as a clean break.
Typically, the lower earner in the relationship may be entitled to spousal maintenance from their former spouse with the higher income if they are unable to meet their needs themselves. They will be paid some level of spousal maintenance by the higher earner. Some couples are able to come to a voluntary agreement about spousal maintenance. Where this is not possible the courts will consider, based on the financial needs of both parties, what level of spousal maintenance should be payable.
How much spousal maintenance will I be paid?
There is no set amount of spousal maintenance. Each decision is highly case-specific, and, if it cannot be voluntarily agreed by the separating couple, the decision is at the discretion of the court, guided by the principles of fairness and need. The court's objective is to achieve a fair division: an equitable financial settlement with spousal maintenance payments that allow both parties to move forward with their lives.
Given the complexity of spousal maintenance, it's advisable for individuals considering divorce or separation to seek specialist legal advice to understand their rights and obligations fully. We strongly recommend taking independent legal advice. Our experienced family lawyers can provide guidance tailored to your specific situation, helping to navigate the legal process and achieve the best outcome in your circumstances.
How is spousal maintenance calculated?
There are many factors which influence the amount of spousal maintenance which may be payable. It is a complex balancing exercise. A maintenance award depends on several considerations:
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One of the primary considerations is whether one spouse requires financial support to meet their own needs, especially in cases where there is a significant disparity in the earning capacities of the parties involved. The need for support can arise from various situations, such as one spouse having a lower income or no income at all, having taken career breaks for family reasons, or having a lower earning potential due to age, health conditions, or other factors. It will take into account all personal circumstances such as mortgage payments on the home or whether there are school age children involved which can make earning for one partner more difficult.
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The other spouse must have the sufficient income to pay spousal maintenance after considering their own needs and responsibilities. The court will assess the financial situation of both parties, including income, assets, and living expenses, to determine whether spousal maintenance is feasible and fair.
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The court may consider the standard of living enjoyed by the couple during the marriage. The aim of spousal maintenance is not necessarily to replicate this standard of living but to ensure that neither party experiences undue hardship as a result of the divorce.
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The length of the marriage can also influence entitlement to spousal maintenance. Longer marriages may lead to a greater likelihood of maintenance awards, especially if one spouse has been out of the workforce for a significant period.
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This includes considering both financial contributions and non-financial contributions, such as caring for the home or raising children, which may have impacted one spouse's ability to earn.
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The court will consider the future earning capacity of each spouse, which may include the potential for retraining or gaining employment.
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The court has the discretion to consider any other circumstances it deems relevant. This broad criterion allows for flexibility to address the unique aspects of each case.
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How long does spousal maintenance last?
The duration of spousal maintenance in England & Wales can vary significantly depending on the circumstances of each case, and there is no one-size-fits-all answer. The court has broad discretion to tailor maintenance orders to the specific needs and circumstances of the parties involved. Generally, the duration of spousal maintenance can be categorised into the following types:
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This is maintenance that is paid for a fixed term, which could be several months or several years, depending on the circumstances. It is typically made in regular monthly payments. Term maintenance is often used to allow the receiving party time to achieve financial independence sooner, for example, by retraining or gaining alternative employment and generating their own income. The term is set with reference to the time the court considers the receiving party needs to adjust to financial independence without undue hardship. The court may order “extendable term” maintenance, where the term can be extended under certain circumstances, or “non-extendable term” maintenance, where the term cannot be extended beyond the initially set period. At the end of the term, the receiving party’s income claims will be brought to an end, thereby achieving a “clean break” at that stage.
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This type of maintenance order requires ongoing spousal maintenance payments to continue until either party dies or the recipient remarries or enters into a new civil partnership. Joint lives orders are less common and are typically reserved for situations where the recipient is unlikely to become financially independent due to age, health issues, or other significant factors.
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In some cases, the court may issue a nominal maintenance order, which is essentially an order for a small amount of money (e.g., £1 per year). While this might seem unusual, it keeps the maintenance claim open, allowing for the possibility of applying for an increase in maintenance in the future if circumstances change significantly.
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Instead of regular ongoing payments, the court may decide that a one-off lump-sum payment is more appropriate. While not a form of maintenance in the traditional sense, a lump-sum payment can be in lieu of ongoing spousal maintenance, effectively settling the maintenance claim and achieving a clean break on divorce.
The duration of maintenance is determined based on various factors, including the length of the marriage, the age and health of the parties, their earning capacities, and any impact the marriage has had on their ability to earn in the future. The court’s aim is to achieve a fair outcome that reflects the needs of the receiving party and the ability of the paying party to provide support.
In all cases, spousal maintenance automatically ceases upon the receiving party’s remarriage or entering a new civil partnership.
Given the complexity of determining the duration of spousal maintenance, individuals going through a divorce or separation are strongly advised to seek legal counsel. A family law solicitor can provide tailored advice and representation to ensure that any maintenance order reflects an individual's needs and circumstances.
What is the difference between spousal maintenance and child maintenance?
Spousal maintenance payments are provided to meet the demands of the spouse and are not the same as child maintenance payments. Maintenance for children is governed by the laws of England and Wales. Payment aims to ensure that children receive the appropriate care.
However spousal maintenance payments may be influenced by the presence of children in a divorce, for example if children are living with one parent an allowance may be made in the spousal maintenance payment for the costs of housing the children or the fact that parenting younger children may limit one parent’s ability to earn.
Spousal maintenance is paid above child support and is mainly intended to meet the demands of the other spouse.
Are spousal maintenance payments guaranteed?
No, spousal maintenance payments are not guaranteed. Orders can be varied or dismissed by the courts if circumstances change, for example if the person paying suffers ill health or a job loss. There are many circumstances in which the court may change spousal maintenance payments.
Spousal maintenance payments may end if the recipient remarries, enters a new civil partnership, or becomes financially self-sufficient. Often spousal maintenance payments change when children leave school or university or move away from home.
How do I apply for spousal maintenance?
Once you have separated from your partner you can ask them for spousal maintenance. If you are able to come to a voluntary arrangement, you may do so although given the high emotions a separation or divorce can cause, many people will do so through their lawyers or through a process known as mediation.
If you are still unable to come to a satisfactory conclusion you can claim spousal maintenance by applying to the courts. The court will consider the facts and come to a judgment about a suitable spousal maintenance order. Discussing your case in full with an experienced lawyer can make the process easier and may lead to a better settlement.
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Is spousal maintenance taxable?
In the United Kingdom spousal maintenance payments you receive are not considered taxable income. Similarly, the former spouse who makes the spousal maintenance payments cannot claim tax relief on these payments. This means that the payer must pay spousal maintenance from their after-tax income, and the recipient does not have to pay tax on the maintenance they receive. Spousal support payments will not affect your ability to claim tax credits.
This tax treatment applies specifically to maintenance payments that are made under a court order following a divorce or separation. It's important to distinguish spousal maintenance payments from child support payments; child support is also not taxable income for the recipient, and the payer cannot claim tax relief on these payments either.
Tax laws and regulations can change, and there may be specific nuances or exceptions depending on individual circumstances. Therefore, it's advisable for individuals involved in divorce or separation, and who are either paying or receiving spousal maintenance, to consult with a tax professional or a family law solicitor to understand the current tax implications fully and how they apply to their specific situation. This ensures compliance with tax laws and helps both parties understand the financial impact of spousal maintenance payments.
Do I have to pay spousal maintenance?
Yes, once a court has made a decision and issued an order you cannot stop paying spousal maintenance. You are legally obligated to comply with that order. Your ex-partner is entitled to receive spousal maintenance. Failing to adhere to a court-ordered spousal maintenance agreement can lead to serious legal consequences, including but not limited to:
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The court has several mechanisms at its disposal to enforce maintenance orders. These can include wage garnishment (directly deducting maintenance payments from your salary), seizing assets, or other legal measures to ensure compliance.
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Non-compliance with a court order, including failure to pay spousal maintenance, can result in legal penalties. This might include fines or, in extreme cases, imprisonment for contempt of court.
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Failure to pay spousal maintenance can potentially impact your credit score negatively if the missed payments are reported to credit agencies.
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If you miss spousal maintenance payments, the amount you owe will accumulate as arrears. You will be liable for these arrears, and the court may order you to pay them in addition to ongoing maintenance payments.
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If the recipient of the maintenance needs to take legal action to enforce the payment, you may be ordered to pay their legal fees as well as your own.
It's important to communicate with your solicitor if you are experiencing difficulties in meeting your spousal maintenance obligations. If your financial circumstances have significantly changed since the maintenance order was made (for example, due to job loss, illness, or other significant life changes), you may be able to apply to the court for a variation of the order to reduce the amount you have to pay or terminate the maintenance obligation altogether.
However, such applications can only be made on the basis of a significant and ongoing change in circumstances, and you must continue to comply with the existing order until any variation is granted by the court.
If you believe you cannot meet a spousal maintenance payment, it's crucial not to simply stop payments but instead seek legal advice immediately. We can guide you through the process of applying for a variation of the maintenance order or advise you on other legal options that may be available to you based on your specific circumstances.
If the partner remarries you no longer pay spousal maintenance.
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What do I do if my ex-partner stops paying spousal maintenance?
If your ex-partner stops paying spousal maintenance monthly payments as required by a court order, there are several steps you can take to address the situation. It's important to speak to your lawyer, act promptly and to understand your legal options:
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First, try to communicate with your ex-partner to understand why the payments have stopped. There could be a legitimate reason, such as job loss, illness, or other significant change in financial circumstances. If the paying parties’ income has changed they may no longer have sufficient income for paying spousal maintenance. Sometimes, an informal agreement can be reached, or at least you can gain an understanding of the situation.
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If communication doesn't resolve the issue or if your ex-partner is unwilling to discuss the matter, seek legal advice from a solicitor specialising in family law. We can provide guidance based on your specific situation and inform you of your rights and the next steps.
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Before taking formal legal action, consider mediation. A mediator can help you and your ex-partner reach an agreement or find a temporary solution. However, mediation is voluntary, and both parties need to agree to participate.
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If informal attempts fail and mediation is not successful or appropriate, you can apply to the court to enforce the maintenance order. The court has various powers to enforce the order, including:
Attachment of Earnings Order: Directing the payer's employer to deduct maintenance payments directly from their wages.
Charging Order: Securing the maintenance debt against the payer's property or assets.
Third-party Debt Order: Freezing funds in the payer’s bank account to be paid directly to you.
Committal to Prison: As a last resort, the court can imprison a payer for non-payment, although this is rare and usually seen as a measure of last resort.
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If your ex-partner's financial circumstances have genuinely changed, they may apply to the court for a variation of the maintenance order to reduce the amount they have to pay. If you believe this change is temporary or not as severe as claimed, you can contest this application. However, if the change is permanent and significant, the court may adjust the order accordingly.
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Keep detailed records of all missed payments, any communication with your ex-partner regarding maintenance, and any expenses incurred as a result of missed payments. This information can be vital in any legal proceedings.
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If your spousal maintenance order also includes child maintenance and your ex-partner stops paying, you can contact the Child Maintenance Service for help with the child maintenance portion. The CMS has its own procedures for assessing, collecting, and enforcing child maintenance payments.
Taking action can feel daunting, especially during what is often an emotionally charged time. However, maintaining your financial stability is crucial, and the law provides mechanisms to ensure compliance with maintenance orders. Legal advice can provide clarity and a path forward, ensuring that you are supported through the enforcement process.
Does my husband have to pay the bills until we are divorced?
Whether your spouse is required to continue paying bills until the divorce is finalised depends on several factors, including the nature of the bills, whose name they are in, any temporary agreements or court orders in place, and the relevant laws. In the context of the UK, here's a general overview of how financial responsibilities might be handled during the separation and divorce process:
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For bills and financial obligations that are jointly held (such as a mortgage on a marital home, joint bank accounts, or utility bills in both names), both parties are typically responsible for continuing to make payments to avoid defaulting, which could harm both parties' credit scores. Ideally, you and your husband should try to agree on how to handle these payments while the divorce proceedings are ongoing.
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It's common for separating couples to make temporary arrangements regarding their finances and who will pay for what until the divorce is finalised and a financial settlement is reached. These arrangements can be informal agreements or formalised through a legal process.
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If you are financially dependent on your husband, you may be entitled to interim maintenance to cover your living expenses and bills until the divorce settlement is finalised. This is especially relevant if you have been a stay-at-home parent or have a significantly lower income than your husband. Interim maintenance can be agreed upon between yourselves or, if necessary, decided by a court.
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Given the complexities of financial arrangements during a divorce, it's advisable to seek legal advice early in the process. We can help you understand your rights and obligations and can assist in negotiating temporary financial arrangements. We can also help you apply for interim maintenance if necessary.
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If you cannot reach an agreement regarding the payment of bills and other financial obligations, you may need to apply to the court for an order. The court can make various orders regarding who should pay the mortgage, household bills, and other living expenses during the divorce process.
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Ultimately, the division of financial responsibilities, including who will pay the bills, will be part of the financial settlement agreed upon or ordered as part of the divorce proceedings. This settlement should address all aspects of the couple's finances, including assets, debts, pensions, and ongoing maintenance payments, if applicable.
It's important to document any agreements made and to keep records of all bills and payments during the separation and divorce process. This information can be crucial during negotiations and if court intervention becomes necessary to resolve financial disputes.
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Does a husband have to support his wife during separation?
During a separation, whether a husband is legally required to support his wife financially depends on several factors, including the laws of the jurisdiction where the separation occurs, the couple's financial situation, any pre-existing agreements (such as a prenuptial agreement), and whether there are any children from the marriage. In the context of UK law, here are some key points to consider:
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In the UK, both spouses have a legal obligation to support each other financially. This duty can extend to the period of separation leading up to the divorce. The extent of this support can vary based on the needs of the receiving spouse and the paying spouse's ability to pay.
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During the separation, one spouse may be required to pay maintenance to the other. This is particularly the case if there is a significant disparity in income or if one spouse has been financially dependent on the other during the marriage. Maintenance payments are intended to cover living expenses and ensure that the financially weaker spouse can maintain a reasonable standard of living during the separation.
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If there are children involved, the non-resident parent (the parent who the children do not live with most of the time) is usually required to pay child support to the parent who has primary care of the children. This is separate from any spousal maintenance and is intended to cover the costs associated with raising the children.
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If a couple cannot agree on financial support during the separation, either party can apply to the court for an interim financial order. This is a temporary order that outlines financial arrangements until a final settlement is reached or decided by the court as part of the divorce proceedings.
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Given the complexities involved in financial arrangements during a separation, it's advisable to seek legal advice from a solicitor specialising in family law. We can help negotiate maintenance payments, apply for interim orders if necessary, and ensure that any agreement is fair and meets your needs.
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Any financial agreement made during the separation should ideally be formalised legally to ensure that it is binding and enforceable. This can be done through a separation agreement, which outlines the terms of the financial support and any other arrangements agreed upon by the couple.
It's important to note that financial obligations during separation are assessed on a case-by-case basis, taking into account the unique circumstances of each couple. The primary aim is to ensure that both parties and any children from the marriage are adequately supported during this transition period.
Examples of spousal maintenance
Spousal maintenance arrangements can vary significantly based on the financial circumstances of the parties involved, the length of the marriage, the needs of each party, and other relevant factors. Here are three examples of different spousal maintenance arrangements that might be ordered or agreed upon:
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Example: After a 10-year marriage, one spouse, who has been the primary earner, is ordered to pay spousal maintenance to the other spouse for a period of 5 years. This arrangement allows the recipient spouse time to gain employment or complete educational courses to become financially independent. The amount could be set at a fixed monthly payment of, say, £1,500, with the understanding that this will facilitate the recipient's transition to self-sufficiency.
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Example: In the case of a long marriage where one spouse has never worked outside the home and is of an age that significantly impedes their ability to become employed, the court may order joint lives maintenance. This means the paying spouse is required to make regular spousal maintenance payments for the remainder of either party's life or until the recipient remarries or enters into a new civil partnership. For instance, the payment could be set at £2,500 per month, reflecting the lifelong commitment to support the recipient's financial needs.
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Example: The court orders a nominal maintenance of £1 per year. This scenario might occur in a situation where the recipient is currently self-sufficient but there is a recognition that circumstances could change (e.g., due to health issues), which might necessitate a review and possible increase in maintenance payments in the future. The nominal order keeps the payer's obligation legally open without requiring actual significant payments unless a review is initiated and an adjustment made based on changed circumstances.
These examples illustrate the flexibility of spousal maintenance arrangements, designed to accommodate the diverse needs and situations of divorcing couples. The specific terms, including the amount and duration of maintenance, are influenced by a variety of factors and aim to achieve a fair and equitable outcome for both parties and avoid undue hardship. It's important for individuals navigating divorce or separation to seek legal advice to understand their rights and obligations regarding spousal maintenance fully.
Spousal maintenance one third rule
The "one-third rule" regarding spousal maintenance is a now outdated principle whereby the incomes of the two spouses would be added together and the lower earner would be awarded a third of their combined incomes total minus their own income.
In practice, the determination of spousal maintenance payments nowadays is much more nuanced and is based on a comprehensive assessment of both parties' financial needs, resources, earning capacities, and other relevant circumstances. Courts have wide discretion to decide on the appropriate amount and duration of spousal maintenance, aiming to ensure that financial settlements are fair and meet the reasonable needs of the parties involved.
Spousal maintenance payments and financial settlements
Integrating spousal maintenance into broader financial settlements requires careful negotiation and legal expertise. It's a process that not only involves determining the appropriate level of maintenance but also how it fits with asset division, pension arrangements, and other financial considerations.
Conclusion
Spousal maintenance is a pivotal aspect of divorce proceedings, offering a lifeline to those who might otherwise face financial hardship following the end of a marriage. Its complexity underscores the importance of obtaining specialist legal advice, ensuring that agreements are fair, equitable, and reflective of each party's needs. As laws and individual circumstances vary, professional guidance is indispensable in navigating this challenging landscape, empowering individuals to make informed decisions about their futures.
Each case is unique and different. If you would like to speak to an experienced family lawyer about your spousal maintenance rights or obligations, please call us on 0207 242 6000.
