Spousal maintenance is one of the most misunderstood areas of family law so we decided to write a brief article about it.
There can be a need for one spouse to continue to financially support the other after a relationship breakdown. This applies to married, de facto or same sex couples relationships. This is termed spousal maintenance.
Unlike child support there is no government authority to calculate or collect spousal maintenance.
To obtain a spousal maintenance court order you must establish your need for financial assistance and your ex-partner’s ability to pay. To establish a need, you must show that you are unable to adequately support yourself. Reasons for your lower income that cannot meet your needs could be a medical condition or a long period out the workforce. Perhaps you are caring for young children and while the child support system pays for the children, there is further need to support you. The ability of the other party is also necessary. After taking into account their own reasonable costs of living they must also have the capacity to contribute to your financial support.
There can be a great deal of discussion as to what is necessary or reasonable costs of living both for the payer and the receiver. Almost always separating couples need to rein in their spending a little as there are now two households to support on the same family income.
The work capacity of a long time homemaker is often in dispute. The income earning capacity of a self employed breadwinner is also often in dispute. The income often drops after separation and whether this is due to stress of separation or a deliberate action to reduce payments needs to be considered. We have seen plenty of both genuine and suspicious situations.
Often spousal maintenance will be paid only until a final settlement. When the settlement is concluded there may be a lump sum buyout of the party’s spousal maintenance entitlement. Most people prefer this. However, the court prefers regular periodic payments, so there is an incentive to settle out of court. Spousal maintenance orders can operate for an unlimited period of years following the final property settlement.
Spousal maintenance can be an extremely difficult area of law because of the issues of:
- need to receive
- ability to pay
- what is reasonable spending
- what is the true income earning capacity of the receiver
- what is the true income earning capacity of the payer
- when does the need to receive stop
- and expert legal advice is required if you want to receive or defend an order for maintenance.
A COMMON MISTAKE
A common mistake we see is confusion between “income” and “income earning capacity”. Bitter people have been known to throw in their job just to spite the other party. Not only is it ridiculously stupid and counter-productive but it doesn’t even work. The law is interested with your “income earning capacity” which can be different to your actual income.
A LITTLE MORE INTERESTING
A more interesting situation arose in a child support case when a husband who was a handy golfer gave up his job to pursue his dream as a professional golfer. He hoped to make the big time and pay lots of money to his wife, but of course, after a period of working his way up, where she and the children would be set back. Career development and change is a good thing but there is a fine line somewhere. A year of extra education with a pay drop for a genuine career improvement may be approved. The budding golfer was unsuccessful and judged on his income earning capacity under his old occupation. He still had to pay. You can pursue your dream, but at your cost. You still have to pay for your child or spouse as if you were working normally. We don’t think the pro golf career took off either as we’ve not heard much since.