Agreeing a fair financial settlement is a key part of divorce. As part of this one of you may agree to pay regular alimony - more properly known as spousal maintenance or periodical payments - to the other
When is spousal maintenance needed?
Spousal maintenance is generally agreed as part of a wider financial settlement, deciding how your savings and other assets will be divided up when you divorce. Spousal maintenance is provided in addition to any child maintenance.
Spousal maintenance is typically needed when one of the partners does not have enough income to support themselves. For example, one of you may have given up your career to look after the children. This carer might need alimony payments to cover the shortfall.
If the two of you have similar incomes and get divorced after a short, childless marriage, spousal maintenance is less likely to be required.
Spousal maintenance may also be unnecessary if there are plenty of savings to share between the two of you. Instead of regular alimony payments, one of you could be given a lump sum payment as part of a clean break settlement that leaves both of you financially independent from each other and able to support yourselves.
You lose the right to claim spousal maintenance if you remarry, and any existing spousal maintenance automatically ends.
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Calculating spousal maintenance
Unlike child maintenance, there is no fixed formula for calculating how much alimony should be paid. A judge will want information on each partner's outgoings and income. After taking into account the financial needs of any children, the judge will aim to balance each partner's needs fairly.
Factors taken into account include:
- each partner's needs, particularly where these are the result of the marriage (eg where one of you has been the primary carer for children);
- where money is limited, how much alimony is needed to avoid significant hardship;
- for wealthier couples, whether one partner should be compensated for choices made during the marriage.
'Needs' can be interpreted fairly generously, and the standard of living during the marriage is taken into account. But there is no automatic entitlement to receive enough alimony to maintain the same standard of living indefinitely. Where it is fair, spousal maintenance may only be temporary while the financially weaker party adjusts.
Asking a court to decide spousal maintenance can be risky: it is impossible to know exactly how much alimony will be awarded and how long it will last. If possible, it may be better to ask your lawyer to give you a range of possible outcomes, and try to negotiate agreement between yourselves instead. You can then ask the court to make that agreement legally binding with a consent order.
Types of spousal maintenance
A court may order joint lives maintenance. This means that maintenance is open-ended - unless a court later reassesses it, maintenance will continue to be paid as long as you are both living, unless the recipient remarries. Joint lives maintenance is common with older couples at the end of a long marriage, or where one partner cares for young children.
Provided it is fair and reasonable, the court will look to limit how long spousal maintenance lasts. Term maintenance like this aims to help cover the recipient's needs temporarily - for example, until the children leave education or while the recipient restarts a career.
Where neither party needs financial support at the moment, the court can order nominal maintenance (eg £1 a year) as a safety net in case circumstances later change. This leaves the recipient free to apply for an increase later if necessary. Nominal maintenance is sometimes used where there are young children.
An application for spousal maintenance can be made any time after the conditional order has been granted. A separate type of maintenance application can be made if one of you has immediate financial needs during the divorce process that the other refuses to help with. An interim maintenance order (also known as maintenance pending suit) provides maintenance payments until the divorce is finalised.
Changing spousal maintenance
Unlike clean break agreements, either partner can go back to court to ask for maintenance to be varied or brought to an end because circumstances have changed. As with the original maintenance application, the court will look at what is fair and reasonable.
For example, the payer might ask for alimony payments to be reduced or suspended if they lose their job. A payer might also ask for maintenance to be reduced or brought to an end if the recipient's financial circumstances improve (eg if the recipient gets a highly-paid job or starts cohabiting with someone else).
A recipient may ask for increased maintenance if the payer's financial circumstances improve, or their own financial circumstances are difficult. The recipient can also ask for a term maintenance agreement to be extended unless the court originally ordered that this should not be allowed (known as a section 28(1A) bar).
If there is enough money available, either party can ask for an order to be 'capitalised' - replacing regular alimony payments with a one-off lump sum payment.
Any changes must be agreed by the court, but it can reduce costs and uncertainty if you discuss potential changes with your former spouse before making a court application.
Spousal maintenance pitfalls
Before negotiating an agreement or going to court, you should be aware of the potential drawbacks.
As the payer, you will continue to face the risk of an increased claim from your former spouse. Wealthy spouses who think they have good financial prospects often prefer to negotiate a clean break agreement for this reason.
As the recipient, you face several risks:
- You continue to be financially dependent on your spouse. Your maintenance payments might fall or your former spouse might fail to make the required payments.
- Spousal maintenance may affect your entitlement to benefits and tax credits.
- Maintenance payments end if you remarry.
- Maintenance payments end if your former spouse dies. However, you can be protected (for example, with an appropriate life insurance policy) or might be able to make a claim against their estate as a financial dependent.
You should take advice to make sure you understand your best option and how spousal maintenance will affect your overall financial position.
