We would like to tackle five common myths about spousal maintenance for you:
My spousal maintenance payments are fixed for life
Spousal maintenance is variable. Either party can apply to the court to vary the amount that is to be paid in maintenance.
If I lose my job, I can stop paying spousal maintenance
In this situation, you need to make an application to court to vary your maintenance payments, as a breach of a court order will be taken seriously by a court, even if there are extenuating circumstances.
I know the date on which my spousal maintenance payments will end
You may have a “term” order, which means that you have agreed to pay maintenance for a fixed period of time. If your order does not have a specific wording in to prevent an extension being applied to the term, you may be ordered by a court to continue paying spousal maintenance beyond the end date in your order. The specific wording required to prevent an extension of the term is called a s28(1A) bar, after the relevant statutory provisions in the Matrimonial Causes Act 1973.
I can stop paying spousal maintenance when my children leave home
This depends on the exact wording of your court order. If the order specifies that the spousal maintenance payments end at that point, then this may be correct. There is no automatic right to stop spousal maintenance payments when your children leave home though.
Spousal maintenance is calculated according to a formula
There is no formula. An amount is either agreed between the divorcing couple, and then included within a “minutes of consent” document for a court to consider, or the court uses its powers to make a spousal maintenance order if it considers this to be the appropriate outcome. The actual amount to be paid and the amount of time during which the maintenance should be paid will depend upon the many different factors in the case. The relevant factors to be taken into account include those listed below. The different weighting to be applied to each factor will depend on the money available for distribution and the particular circumstances of each case.
- The welfare of any children of the family
- The income of the parties, both now and in the future;
- The earning capacity of the parties, both now and in the future (the court will also consider under this heading whether it would be reasonable for a party to increase that earning capacity);
- The financial needs of the parties, both now and in the future;
- The financial obligations and responsibilities of the parties, both now and in the future;
- The standard of living of the parties before the breakdown of the marriage;
- The age of each party to the marriage;
- The duration of the marriage;
- Any disability of any party to the marriage;
- The contributions which each party has made or is likely to make, to the welfare of the family, including looking after the home and family;
- The conduct of each party, if it would be inequitable to disregard it.