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If you're struggling financially during a divorce, you can apply to the court for maintenance pending suit. This means your partner will have to help support you during the divorce process.
In this guide you'll learn:
- What is Maintenance Pending Suit?
- Am I eligible?
- How do I apply?
And more
Let's get started...
What Is Maintenance Pending Suit?
Maintenance pending suit is financial support that one spouse periodically pays to the other during divorce proceedings. It can be ordered by the court or agreed upon by both parties.
If you're struggling financially, maintenance pending suit can help you cover your living expenses in the interim, while you're going through the <bloglink>divorce process.<bloglink> This type of support is also sometimes called "interim maintenance."
Am I Eligible For Maintenance Pending Suit?
You may be eligible for maintenance pending suit if you can't support yourself financially during the divorce process. For example this could be because you're not working, or you're working but not earning enough money, or you're a <bloglink>stay-at-home parent.<bloglink>
When deciding if you're eligible the court will consider a number of factors when assessing whether and how much maintenance you should receive. Such as:
- Would it be fair and reasonable to make an order?
- What were the <bloglink>standards of living<bloglink> enjoyed during the marriage by the parties?
- What are the financial positions of the parties?
- Does the paying party have the ability to pay?
- Is the receiving party caring for any children to the marriage?
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In general the court will consider ordering maintenance if the proceedings are causing real hardship to the financially weaker party; if the receiving party is the primary carer for any children; or if not receiving help would lead to one party suffering a very substantial reduction in their living standards. They will also consider whether ordering payment would cause undue hardship to the paying party.
Interim maintenance is pretty rare these days. There usually needs to be a significant difference between the incomes of the parties before the court would make such an award (for example, during a <bloglink>High Net Worth divorce<bloglink>).
You also have to have good prospects of a favourable outcome in your divorce settlement. The more speculative your claim, the less likely to court is to order maintenance.
Top Tip:
"Maintenance Pending Suit" is quite a mouthful. But in simple terms it just means "Regular payments until your divorce is finalised"
How Much Will I Get For An Interim Maintenance Payment?
The amount you'll receive for maintenance pending suit (aka "interim maintenance") will depend on your individual circumstances.
There is no set formula for calculating this amount, and the court will take a "rough and ready" approach to deciding the sum (remember, this is an interim payment designed as a temporary lifeline).
“[Maintenance Pending Suit] is designed to deal with short-term cash flow problems, which arise during divorce proceedings. Its calculation is sometimes somewhat rough and ready, as financial information is frequently in short supply at the early stage of the proceedings.”
<bloglink>Moore v Moore [2009] EWCA Civ<bloglink>, Coleridge J
The court will consider things like your income, your ability to work, and any children you have when making a decision.
They will try to decide what is fair, whilst balancing the needs and incomes of both parties.
The purpose is to meet your immediate needs- It's not a final settlement. The court will consider the standard of living you enjoyed before separation, but will not seek to exactly replicate that standard. It's expected that a divorce means both parties are going to need to tighten their belts.
If the court decides to award interim maintenance, it will also determine how much the payments should be, and how long they should last for...
How Long Does Interim Maintenance Last?
Maintenance pending suit payments are designed to be a temporary measure, to help you get by until your divorce is finalised.
The court can order maintenance pending suit for any length of time- it will depend on your individual circumstances. But in most cases, maintenance pending suit payments will last for the length of your <bloglink>divorce process<bloglink>, which is commonly <bloglink>between 12 and 24 months<bloglink> before the <bloglink>decree absolute<bloglink> is granted, or the <bloglink>divorce settlement<bloglink> finalised.
How Do I Apply?
The power of the court to award Maintenance Pending Suit is derived from <bloglink>section 22 of the Matrimonial Clauses Act 1973.<bloglink>
To ask the court to consider granting interim maintenance you (or your solicitor) needs to:
What Happens Next?
Once you've filed your application with the court, the other party will have a chance to respond. They must:
The court will then make a decision based on the evidence they've heard.
If the respondent doesn't provide adequate disclosure about their finances then the court can make "robust assumptions" about their ability to pay.
If the court decides to award maintenance pending suit they'll also decide how much the payments should be, and how long they should last for.
How Will The Payments Be Made?
The interim maintenance order will say how and when the payments should be made- but they are normally paid directly into the bank account of the receiving party by monthly <bloglink>standing order<bloglink>, paid in arrears.
They cannot be indirect payments (for example covering a mortgage or credit card bill).
It's important to remember that maintenance pending suit payments are normally paid in addition to any <bloglink>child maintenance<bloglink> payments that might also be due.
Is Interim Maintenance The Same As Spousal Maintenance?
No. Interim maintenance is a short term measure to help you get by until your divorce is finalised. It's not a final maintenance order and will end when the divorce decree absolute is granted or the divorce settlement is agreed (whichever happens first).
<bloglink>Spousal maintenance<bloglink> on the other hand can be ordered for either a set period of time, or indefinitely. It's normally ordered when one party can't support themselves financially after the divorce, and the other party has the ability to pay maintenance.
Interim maintenance (which is for living expenses) is also distinct from a <bloglink> Legal Service Order<bloglink> (which is to help pay your divorce legal fees).
What Are The Alternatives To Maintenance Pending Suit?
If you're going through a divorce and need financial support to help cover your costs, there are a few different options available to you. As well as maintenance pending suit, you could also consider:
- A <bloglink> Legal Services Order<bloglink> (to help pay your divorce legal fees) .
- <bloglink>Spousal Maintenance<bloglink> (paid after the divorce is finalised, and can be ordered for either a set period of time, or indefinitely).
- Child maintenance payments.
There are also now a range of specialist lenders that can help you pay your <bloglink>divorce legal fees<bloglink>. Some of these lenders can also help with your living expenses during your divorce. To learn more, check out my specialist guide:
Can Maintenance Pending Suit Be Increased Or Decreased?
Yes- interim maintenance payments can be varied by the court, or on application by either party. For example, if the respondent's circumstances change and they can no longer make payment, or if the receiving party's circumstances change and they need more money.
Can Maintenance Pending Suit Be Backdated?
Yes- if the court decides to award maintenance pending suit they can make an order for payments to be backdated to cover any period since you separated.
Can I Get Maintenance Pending Suit If I Have A Prenuptial Agreement?
It depends on the terms of your agreement. If you have a <bloglink>prenuptial agreement<bloglink> which covers maintenance, then the court will take this into account when making a decision about interim maintenance.
Do I Have To Pay Tax On Maintenance Pending Suit Payments?
No- interim maintenance payments are not taxable.
Leave A Comment
I hope you found this guide useful!
Let me know what you think...
- Have you struggled with your finances during a divorce?
- Would interim maintenance be a help to you?
- What other options have you considered?
Tell me by leaving a comment below...
Neil Johnstone is a barrister and the founder of FundingMyClaim.com. Neil is a barrister with an interest in all forms of civil and family law, and has appeared at all Court levels, up to and including the Court of Appeal.
Neil started this site in response to a common problem he noticed: Clients were unable to pursue deserving cases due to a lack of up-front funds. Neil knew that better access to No-Win-No-Fee representation and legal funding could help bridge the gap, and so founded FundingMyClaim.com; a unique comparison site connecting clients, law firms, and specialist funders.
