Understanding spousal maintenance
Married couples, who come to Direct Mediation Services for mediation, are often looking to reach agreements on their finances. Commonly, this will lead to discussions on the family home, on savings, on pensions, and sometimes on spousal maintenance. For many clients, spousal maintenance can seem quite confusing. What is it? Why does one spouse have to pay it to another after the divorce? How much should be paid? Our accredited family mediators often give the same legal information: There are no general rules, and it really depends on your case.
Spousal maintenance is a form of income that is paid by one spouse to the other, following divorce. The payment is directly to the spouse, so is additional to any child support payments. Similar to child support payments, spousal maintenance is usually paid monthly. When spousal maintenance is used, it is common for it to be set for a defined period of time. Think about child support – this is usually paid until the child turns 18. Similar time periods can be applied for spousal maintenance. There are, however, cases where spousal maintenance is paid for the rest of the spouse’s (who is receiving payments) life. These cases are becoming less common, but can happen.
Why does spousal maintenance have to be paid?
It can be difficult to understand that one spouse can be legally obliged to financially support their former spouse after divorce. The fact is, common law creates a duty that spouses should support one another whilst married and this duty actually continues even after divorce.
Importantly, spousal maintenance is not a given and no spouse is automatically entitled to receive it. Yet, it often is considered as part of financial arrangements. Whilst consideration of spousal maintenance at mediation is up to the participants, a Court would consider two options:
- A Clean Break – ending all financial ties between the spouses so there can be no future claims on each other’s assets or property and no spousal maintenance would be paid. (Note, a clean break does not mean that child maintenance would not be paid)
- Spousal Maintenance – where one spouse requires such payments after the divorce to meet their needs.
The ultimate goal of spousal maintenance is that the spouse who is not as financially strong as the other is able to live a separate life where their needs are met. The spousal maintenance acts as a “top up” of their income and means that they should be able to live a financially stable life, as close to how it was whilst married. Other considerations are that often the spouse who is less financially strong has not progressed with their career, as they have devoted their life to being a spouse and often raising children, and maintaining a safe and stable home. In these circumstances, spousal maintenance will be a fairer option, as it will allow the spouse to be able to move on and begin to set up their new life with financial support.
If it is accepted by the couple that spousal maintenance will be required, or a Court orders as such, then the question is how much will need to be paid and how long will the payments continue?
How long is spousal maintenance paid for?
Spousal maintenance is usually paid for a fixed term decided by the participants or by the Court. A common period of time that is given is until children reach the age of 18 where maintenance payments can then be considered. Subject to means and needs, some spouses choose to fix a “joint lives order” where the payments are paid for the rest of the former spouse’s life.
The spousal maintenance will end when the fixed term is complete. The term can be extended, however, by discretion of the parties or where the ending of the spousal maintenance will result in undue hardship if the payments stop. In essence, spousal maintenance will actually only end when it is fair, just and reasonable to do so.
Another circumstance where spousal maintenance can end is where the former spouse remarries. This creates a legal contract whereby the new spouses will need to support each other financially, thus negating the need for the former spouse to continue making payments. Interestingly, cohabitation with a new partner does not achieve this same effect. This is because cohabitation does not create the same legal contact as does marriage.
Therefore, whilst generally spousal maintenance will end when the term that was originally agreed expires, there are circumstances where this is not the case and actually terms can end early or be extended. There is a general feeling amongst legal professionals that there is a lack of clarity in relation to spousal maintenance which needs addressing. Below we have listed some key facts about spousal maintenance, which hopefully will make things a little clearer:
- Spousal maintenance is separate to child maintenance.
- Spousal maintenance is based on need after divorce. If one spouse does not have good prospective income after the separation, then they may be entitled to spousal maintenance.
- Spousal maintenance orders are usually for fixed terms rather than for life. The term that is decided is based on individual circumstances, usually it is until children have reached the age of 18.
- When deciding on how much spousal maintenance is to be paid, income and expenditure of both spouses will be considered, as well as the standard of living the spouses had whilst married.
- Any spousal maintenance that is ordered will of course depend on either spouse’s ability to fulfil the payments.
- Sometimes the lifestyles of the spouses will be taken into account – this is usually where there is a big difference in income.
- During the fixed term, the order can be reconsidered if circumstances change (such as a change in employment).
- You can apply to vary a spousal maintenance order during the fixed term.
Can family mediation help with spousal maintenance?
Absolutely. Divorcing couples who are looking to come to an arrangement on their finances will be expected to use family mediation before making an application to the Court. The hope is that you will be able to come to agreements on the finances yourselves. Here, you can consider spousal maintenance and come to an agreement independently.
The mediation process
The MIAMs (Mediation Information and Assessment Meetings). Firstly, you will both need to attend individual MIAMs. These are confidential meetings where you will meet with an accredited family mediator to discuss your case. You will be given information about mediation so that you can make an informed decision as to whether you wish to mediate. Additionally, your family mediator will assess the case for its suitability for mediation.
- Joint sessions. Secondly, if both participants agree to proceed at the MIAM and there are no issues around suitability, you will proceed to joint sessions. At the joint sessions you will set an agenda of points for discussion and work through these with your mediator. You will explore proposals and hopefully reach an agreement. As part of the joint sessions, you will be expected to complete full and frank financial disclosure of all of your finances, so that you can use these as a basis for discussions.
- If you are able to agree on your financial proposals, your mediator will provide you with two documents. The first is the Open Financial Statement, which is a summary of all of the finances that were used in discussions following your financial disclosure. The second is the Memorandum of Understanding, which is a document that details all the proposals you have made with your finances.
- Consent order. Once you have received your documents, you should then go to a solicitor and ask for your proposals to be drafted into a consent order. Your solicitor will provide independent legal advice on the proposals. Once confirmed, this will be submitted to the court to make a financial order and therefore formalise your agreements.
If at any stage during the mediation process either participant decides to end the mediation, or if mediation breaks down, your mediator will provide you with a Form A certificate that you can use to make an application to the Courts for a financial order.
Spousal maintenance can be an area that is difficult to find an agreement, but with support from your family mediator it is not impossible. Direct Mediation Services can support you in this journey from start to finish and hopefully make a difficult situation that little bit easier. If you would like to book mediation, or have a no obligation chat with one of our members of staff you can do so by calling 0113 468 9593.
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Frequently Asked Questions
Can I stop paying spousal maintenance?
Spousal maintenance is usually ordered for a fixed term and therefore will need to be paid until that term expires. You can also stop paying spousal maintenance if your former spouse remarries. Otherwise, you will need to come to family mediation to explain that you wish to stop paying spousal maintenance for whatever reason and come to an agreement. If you are unable to agree at mediation, you will need to go through the Courts.
Do I have to pay spousal maintenance if we were not married?
Sometimes couples who have cohabited for many years may think that they will need to pay spousal maintenance. This is not the case. Spousal maintenance only applies to couples who have been married. Of course, cohabiting couples may come to an independent agreement on maintenance payments in the future, but if there is no agreement the Courts will not make an order in this regard.
How can I claim spousal maintenance?
The first way to claim spousal maintenance is to try and come to an individual agreement. This can be done by using mediation and then formalising the agreement by way of a consent order. If you are unable to come to an agreement, then you will need to apply to the Courts. Remember, you cannot make an application to Court unless you have attended a MIAM, or are exempt from doing so.
Can I apply for a spousal maintenance order if we have already divorced?
You can, but only if there is not already a clean break order in place.
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