Beginner’s Guide to Spousal Maintenance

What is spousal maintenance, how much must be paid, how do you work out what is fair?

When a relationship ends, and the family’s main breadwinner suddenly stops sharing their income, the other person’s situation can quickly become precarious.  Children are almost invariably affected.  It is very hard to shield children from the financial consequences of the separation if one parent doesn’t know where the next rent or mortgage payment will come from.

Spousal maintenance is not child support.  It is financial support for adults, to ensure one partner doesn’t suffer a sharp drop in living standards when the main breadwinner leaves the relationship, with the family’s primary income.

The law recognises that the ability to develop a career, while it may feel like a burden at times, after a separation, creates independence – it is effectively an asset.   Spousal maintenance is one party topping up the other with the income from that asset must be shared between the parties while the other builds up their own earning capacity.

If you and your ex-partner cannot agree on how to share your incomes in the immediate aftermath of the separation you can seek help from an experienced family lawyer and ask the Family Court to step in.

Judges have the power to order one person to pay the other money (known as “spousal maintenance”) so that both are able to meet their reasonable needs after a separation.  The relief can be temporary e.g. a 6 month period of regular maintenance payments, or last for years.  It can even be backdated to pay for the period since separation.

Reaching your own agreement

Your first step in securing maintenance should be to sit down with your ex (if possible) and to try to reach your own agreement.  Not only is that a respectful first step, if it works, you save on legal fees, reduce conflict and avoid putting your life in the hands of a Judge.

Maintenance is a top up that enables the dependent partner to pay their own way.  Agree what your and their reasonable expenses will be over the next year.  Consider what you are each likely to earn (based on last year) and how long it will be before you are independent.

The support may need to continue after you divide assets – for example if you need a top up even once you have your share of relationship property.

When discussing the level of maintenance that is appropriate, consider the impediments to independence.  Does one person have greater responsibility for the children that will stop them getting a well-paid job?  If so, is the other person in a position to reduce their hours so they share extra-curricular drop off duties, alternate children’s sick days, and appointment drop offs? If not, perhaps it suits both parties for the main breadwinner to keep topping up the main caregiver to make things work for everyone.

If you can’t agree

If you are not able to work it out yourselves, engage your lawyers to work on your behalf, try Family Dispute Resolution, or if the stakes are high it may be worth mediating.

A lawyer will be able to tell you what the Family Court might award.  That can help with reaching agreement.

If you can’t get agreement fairly quickly, speak to your lawyer, and make an application.  Maintenance awards in the Family Court in recent years have covered not only the shortfall in living expenses (groceries, rent, power, petrol, haircuts) but other ongoing costs such as legal and accounting costs.  Yes, personal spending like haircuts are part of your “reasonable needs”: the law says the relevant standard is the lifestyle you had during the relationship.

Legal and accounting costs are a significant development of the last 5 years – if you are the breadwinner, it is worth making a decent offer of maintenance (after speaking to your lawyer), because otherwise you will end up paying your ex’s lawyer’s fees.

Maintenance does not cut off when you get a divorce.  Nor does the law require you to go straight into full time work – the Courts will consider the children’s interests at the heart of the discussion.

Maintenance is a key part of you being able to survive and of levelling the playing field so that both parties are in a secure situation from which to resolve their property division.

As legal legend Vivienne Crawshaw KC says in her interview on our very own podcast Divorce Café: “The law is there, so use it!”

You can listen to the episode with Vivienne and others at Divorce Café or on YouTube.