These regular payments from you to your ex, or vice versa, are designed to bridge inequalities in your finances. How much support and for how long varies from case to case, requiring expert guidance.
Unlike child maintenance, there is no set formula for working out how much spousal maintenance is payable. As a result, it can be one of the most complex and contentious areas when it comes to reaching a divorce settlement.
The first step is to establish whether there should be any spousal maintenance at all. The law requires the court to consider the possibility of a clean break order in every case (where there is a final settlement with no financial obligations between you in the future) and that same objective will be relevant to non-court approaches such as negotiation, mediation or collaborative law. Only if a clean break isn't appropriate immediately do you move on to the next stage of looking at the amount of spousal maintenance and how long it might be paid for.
The level of maintenance will depend upon your family’s individual circumstances with the focus being on the expenditure requirements you both have and the income available to cover those needs. The standard of living you've enjoyed during the marriage will also be important. As for duration, if it's possible to be confident that after a period of time the one receiving it can manage without it there will be what is called a "term order". This is one that lasts for a specific period of time for example until the youngest child finishes school, to allow the person receiving it to retrain and increase their income or to coincide with the recipient being able to get their pension. If the future is not so predictable, or it's clear from the outset that the gap on income may never be fairly bridged you can have an open-ended spousal maintenance (or "joint lives") order. This means that the payments continue until either you or your ex dies or the person receiving the payments remarries.
A distinctive feature of any maintenance is that it is always variable. It can be increased or decreased in the future depending on any changes in your or your ex’s financial position. It is also possible for spousal maintenance to be “capitalised” either when you're divorcing or at a later date, which involves the payer making a one-off payment instead of regular monthly amounts in order to achieve a clean break.
Pragmatic advice for spousal maintenance and support
Spousal maintenance raises lots of questions both for the person paying it and the person receiving it. Clear, pragmatic advice is a must to be able to plan your future with confidence. We have recently:
- negotiated spousal maintenance where our client’s ex’s pay was made up of complex elements including deferred bonuses, dividends and shares requiring an unusual order to protect her position
- successfully used arbitration and private FDRs to settle spousal maintenance disputes in a cost efficient and timely way.
- obtained a capitalised spousal maintenance order in unusual circumstances where the lump sum was funded entirely by pension assets
- advised clients looking to vary existing spousal maintenance orders, often where a second family is involved
- advised clients where their spousal maintenance was subject to foreign tax regimes.