In This Post
In this guide I’ll clear up the confusion around a common sticking point in divorce- Spousal Maintenance.
- What Spousal Maintenance is, and who’s eligible;
- How much should be paid and for how long;
- And more...
Let’s get started
What Is Spousal Maintenance?
Spousal Maintenance is money paid on a regular basis (usually monthly), from a husband or wife to their former spouse.
It’s usually the higher earner who will make the payments, to help with the other person’s living expenses.
Spousal Maintenance can be either:
- Agreed as <bloglink>part of your divorce settlement<bloglink>, or;
- Ordered by the Court.
Spousal Maintenance is separate to the division of your financial assets (such as the family home or savings), as it continues for a set period of time after the divorce.
Will I Be Eligible For Spousal Maintenance?
Spousal Maintenance is not automatically available in every divorce case.
It is only paid where one partner can’t support themselves financially from the divorce settlement alone.
So, after you’ve made a fair division of the marital assets, if one partner still can’t afford a reasonable lifestyle, and the other partner has excess income, then Spousal Maintenance might be ordered. Because of this, it usually only comes into play where one party earns considerably more than the other.
You can of course agree to make any ongoing payments you like, as part of your divorce settlement. But if you can’t agree, then the partner seeking Spousal Maintenance can apply to the Court, and a Judge will decide.
There are no hard and fast rules about whether or not the Court should award Spousal Maintenance, but they will take into account factors such as:
Note: Spousal maintenance if very unlikely to be awarded if you have had an <bloglink>annulment (rather than a divorce).<bloglink>
Why Do I Have To Pay Spousal Maintenance?
For the paying party, it can be difficult to understand why the Court has ordered Spousal Maintenance.
“Why am I still paying my ex-spouse after we’ve divorced?”
The answer is that the law views marriage as a financial commitment.
When that commitment ends, the Courts will try to ensure neither party is unable to support themselves financially.
Wherever possible, they will seek to do this via a <bloglink>clean break<bloglink>. But if a clean break is not possible, and there remains a risk of undue hardship, the Court will consider spousal maintenance.
It’s more likely where one spouse has a much higher income than the other, or where the receiving party has made a significant financial sacrifice to support the marriage (such as giving up a career to raise children).
Spousal Maintenance will usually be restricted to the minimum time necessary to allow the receiving spouse to transition to independence.
How Is Spousal Maintenance Calculated?
Before actually calculating how much spousal maintenance should be awarded, the Court will first ask:
Should There Be Any Spousal Maintenance At All?
Before awarding spousal maintenance, the Court is first required to consider whether or not it is possible to <bloglink>achieve a clean break.<bloglink>
A clean break is where you divide your marital assets (the family home, any savings you have etc), and your financial commitment to one another ends there. With a clean break, once each of you has received your share of the divorce settlement, neither of you can make any future financial claims against the other (save for child support in some cases).
The Court will make an investigation into each partner’s finances (earnings, eligibility for benefits, savings etc), and consider what their future outgoings are likely to be.
Only if a clean break is not possible and the Court determines spousal maintenance is necessary, will they then move on to the next stage, which is deciding how much monthly maintenance should be awarded, and for how long.
A point to note: the courts do not take into account the <bloglink>grounds for divorce<bloglink> (such as adultery), when deciding whether to grant spousal maintenance. The main deciding factor is need (not the parties conduct).
Spousal Maintenance Is Meant To Help Meet The Recipient's Financial 'Needs'.
The Court’s objective when granting Spousal Maintenance is to allow the financially weaker party to transition to independence.
They do this by looking at what the future financial needs of the recipient are, and how much income the paying party has.
The “needs” of the receiving party are generously interpreted by the Courts. And if there are any children to the marriage, their welfare will be the Court’s overriding concern.
For example, some people might think that no one strictly needs their children to go to an expensive private school. But if this was the case during the marriage, then the Court will likely decide the children should be able to continue going to the same school. This does not mean the Court won’t expect you to make some reasonable cutbacks or tighten budgets. But in general, they will try to ensure you can maintain a broadly comparable standard of living, post divorce.
How Spousal Maintenance Is Calculated
There are no set formulas determining how much the monthly spousal maintenance payment will be.
The Court has a wide discretion to decide this, and will conduct a balancing exercise to try to achieve fairness between the parties.
Any maintenance award will depend on:
- The payer’s income and ability to pay;
- How much the recipient reasonably needs to live on (including their cost of housing, utility bills, council tax, school costs, debt repayments etc);
- How much income the recipient has, or could earn in the future (including any child support or benefits, any savings or investments, and what their share of divorce settlement was).
If, after conducting this analysis, the Court finds that there is a substantial shortfall on one partner’s reasonable budget, and a surplus on the other partner’s income, then it’s likely they’ll order monthly spousal maintenance to bridge the gap.
The Recipient Of Spousal Maintenance Has A Duty To Maximise Their Income
When considering future needs, the Court will also expect the recipient to make reasonable efforts to maximise their income.
For example, if the recipient has been out of work for a long time, the will Court will consider whether or not they could re-enter the workplace by re-training. If they’re already working, could they increase their hours to supplement their income? Maybe they’re able to start a business?
The Court will take a balanced approach. For example, they won’t expect a single mother to work 50 hours a week. But neither will they let a recipient simply sit back and collect a large sum of money every month from their former partner, when they could reasonably be going to work and earning some income.
How Long Does Spousal Maintenance Last For?
Once the Court has decided how much the monthly or weekly maintenance payment should be, they then go on to consider how long spousal maintenance should last for.
The Court’s objective is to allow the transition to independence as soon as is reasonable. This means they will consider how long it will take for the recipient to become financially independent, and will award the spousal maintenance for that length of time.
The Court usually awards spousal maintenance for something called a “Term Order”.
A Term Order can be for:
- A specific number of years, or;
- Until a specific event (such as a child turning 18)
For example, if the Court thinks it will take 3 years for the recipient to re-train and start earning a reasonable income, they will award maintenance for that 3 year period.
Alternatively, they may order maintenance until a defined event, such as a child completing their education or the recipient becoming eligible for a pension, at which point the recipient will no longer “need” spousal maintenance, and the payments will end.
Lastly, a Term Order may be either extendible or non-extendable. An extendable order takes into account future unknown events, such as whether a child will go to university, and allows the spousal maintenance to be extended if that event occurs.
Non-extendable spousal maintenance can never be extended.
Joint Lives Orders
There is an alternative to the Term Order.
Instead, the Court can order spousal maintenance to last for the couple’s “Joint Lives”.
This means payments will continue until either:
- You or your ex-partner dies, or;
- The recipient remarries.
A Joint Lives Order is more likely where a couple have been together for a long time, and it would be very difficult or impossible for the recipient to re-enter the workplace (perhaps they are already retired, or they may be unable to return to work due to ill health).
However, Joint Lives Orders are becoming increasingly rare, and Courts generally expect that there should be a limit on the length of maintenance wherever possible.
“A limited term should be imposed unless the court is satisfied that the claimant would not be able to adjust to a cut-off without undue hardship.”
Remember, the payer can’t stop the payments until the agreed period ends, and if they do then the recipient can go to Court to have the terms of the order enforced.
However, payments will always end where:
- The period of a Term Order ends;
- Either partner dies, or;
- The recipient remarries.
While cohabiting does not end spousal maintenance, it could be a good reason for the payer to apply to Court to have the amount of spousal maintenance varied.
Can Spousal Maintenance Be Varied Or Ended Early?
Either party can apply to the Court at any time to have the amount of spousal maintenance varied, or even ended early.
Varying Spousal Maintenance
There needs to be a significant change in circumstances before the Court will consider making such a variation.
- The paying party loses their job and can no longer afford the spousal maintenance;
- The receiving party has unexpectedly received a large sum of money, such as an inheritance, and the payer wants the maintenance reduced;
- The maintenance included an amount to pay for a specific event, which now no longer applies (such as a child’s university fees, and that child had now dropped out);
- The receiving party wants the maintenance increased because, for example, they have lost their own job.
Ending Spousal Maintenance Early (Capitalisation)
Either party can also apply for the spousal maintenance to be capitalised.
This means, instead of making regular monthly payments, the entire amount can simply be paid off in one large lump sum. This might be because the payer has received a large amount of money, and the parties would prefer to simply end their financial ties at that point.
How To Apply To Change Spousal Maintenance
If you want to change your spousal maintenance arrangements, your first step should be to try and agree any changes with your ex-partner. Agreeing the changes first (either between yourselves or via your solicitor or a <bloglink>specialist divorce mediator<bloglink>), will be a lot cheaper and quicker than going to Court (you should still formalise any new agreement in a <bloglink>written consent order<bloglink>).
However, if you can't agree, you will need to ask the Court to decide. However, there is no guarantee the Judge will agree with your variation request. They have a wide discretion to achieve what they consider is a fair outcome, and they can increase, as well as reduce, spousal maintenance.
To vary or capitalise spousal maintenance, you apply to the same Court that made the original order. You’ll also need to submit updated financial statements (using the <bloglink>Form E<bloglink>), and explain the change in circumstances that justify the variation.
Both you and your ex-partner have an ongoing legal duty to inform each other if there is a significant change in your financial circumstances.
If Spousal Maintenance Is Paid, Can We Still Have A 'Clean Break'?
<bloglink> "Clean Break”<bloglink> means that you sever all financial ties immediately, and cannot make any future claims against each other.
With spousal maintenance, you are committing to future payments to or from your ex-partner, and so a clean break is not possible.
If you do want to make a clean break, you can capitalise your maintenance payments, which means all the monthly payments are made in one lump sum up front.
What Is Nominal Maintenance?
The Court can sometimes order something called Nominal Maintenance, which is a decision to award spousal maintenance “in theory”, but without any payments actually being made.
The Court will order a notional amount of monthly maintenance, (usually £1, which is not actually paid), with the option to vary the amount upwards in the future should the situation change.
Why do they do this?
Well, it’s a way of keeping the recipient’s claim for spousal maintenance “live”- like an insurance policy should things unexpectedly change in the future.
Nominal maintenance is sometimes ordered by the Court when the receiving party has enough income to satisfy their needs at the moment, but it seems possible they may need further financial help in the future. For example, it's more common where the receiving party is the one caring for the children, and it seems possible they may need future funds to help with raising or schooling them.
For this reason, nominal maintenance is usually ordered for a specific period, that ends on an event such as child reaching a certain age or completing their education.
Remember that if you are awarded nominal maintenance, you will not be able to get a clean break when you divorce.
Is There A Difference Between Spousal Maintenance And Child Maintenance?
Yes, spousal maintenance and child maintenance are completely separate.
<bloglink>Child maintenance<bloglink> is paid purely to help with the cost of a child’s upbringing, and is calculated as a set percentage of the payer’s monthly income.
Spousal maintenance is paid in order to help with an ex-partner’s overall living costs, and is calculated as a set monthly or weekly payment, taking into account the recipient's needs and the payer’s income.
There is an <bloglink>online calculator<bloglink> for child maintenance that can tell you the exact amount you will pay. There is no specific calculation for spousal maintenance, as the Court conducts a complex balancing exercise to determine how much the payments should be.
Spousal maintenance and child maintenance could be payable at the same time. However, the Court will take into account any child maintenance payments you are already making when they calculate how much spousal maintenance should be.
Is Spousal Maintenance The Same As Interim Maintenance?
No. <bloglink>Interim maintenance<bloglink> (aka "Maintenance Pending Suit) is only paid during your divorce process, and comes to an end when your divorce settlement is finalised.
Do I Still Have To Pay Spousal Maintenance If I Lose My Job?
If you lose your job you can apply to have the spousal maintenance varied downwards, suspended, or even ended all together.
For example, if you lose your job and then take on lower paid employment, it’s likely your spousal maintenance payments will be reduced. If you’re only out of work for a short period, and are likely to return to the same level of pay in the future, spousal maintenance might just be suspended temporarily. If you are injured or ill, and unlikely to return to work at all, spousal maintenance may be ended completely.
Like everything with divorce, it’s cheaper and quicker to try and agree to any changes with your ex-partner first. If you cannot agree, then an application can be made to the Court to vary the maintenance.
Can I Claim For Spousal Maintenance If I'm Already Divorced?
Yes, you can.
Generally, it’s better to deal with spousal maintenance at the same time as the rest of your divorce settlement. However, should your situation change down the line, you can still make a claim for spousal maintenance after you have divorced, as long as you do not have a clean break order in place.
If I Move In With My New Partner, Will My Spousal Maintenance End?
If the recipient remarries, the spousal maintenance will always end.
However, if the recipient merely moves in with a new partner, but they are not married, the spousal maintenance does not automatically end. This is because cohabitation is more uncertain than marriage. When you are married, your new spouse has a legal and financial obligation to you if the relationship ends. The same is not true for those who merely live together.
However, this does not mean that the person paying spousal maintenance could, in theory, argue that the new partner should contribute to the recipient’s living costs (such as rent and bills etc), and therefore that the amount of spousal maintenance should be reduced.
There is no guarantee the Court will accept this argument, and you should seek legal advice before making any application to vary maintenance.
Of course, if you agreed the level of spousal maintenance between yourselves (via a consent order), you could also agree to include a clause saying that spousal maintenance will end or be reduced if the recipient moves in with a new partner. Indeed, sometimes the Court may include just such a clause in a spousal maintenance order, if they see fit.
Can I Claim Spousal Maintenance If We Lived Together, But Were Never Married?
No, spousal maintenance is only available if you were married or in a civil partnership.
This doesn’t mean you can’t agree between yourselves to make regular maintenance payments should you wish. But you can’t make an application to the Court for spousal maintenance to be ordered or enforced.
Note, this is different from <bloglink>child maintenance<bloglink>, which can sometimes be claimed, even if you weren’t married.
My Ex Is Now Working. Do I Still Have To Pay Them Spousal Maintenance?
This could certainly be a good reason for the payer to apply to Court to have the spousal maintenance varied.
If your ex-partner now earns enough to cover their needs, spousal maintenance may be ended altogether. If not, spousal maintenance might only be reduced. The legal test is whether or not the recipient can transition to independence without experiencing undue hardship.
Again, it’s always best to try and agree to these changes between yourselves, before applying to the Court.
My Ex Is Hiding Their Income To Avoid Spousal Maintenance. What Can I Do?
Sadly, it’s not uncommon for the paying partner to try to hide or downplay the income or assets they have, in order to avoid or reduce any spousal maintenance.
However, if you know your ex-partner is doing this, then you should apply to Court for a spousal maintenance order. When you do so, you will both have to complete financial disclosure forms.
When completing the forms, each partner has to sign to say they have made full and honest disclosure, and the forms make it very clear that there can be serious consequences for those found to be lying.
Alongside the more serious penalties, it is likely a Court would also punish a partner found to be lying, when it comes to awarding legal costs at the end of the case.
If you believe your partner may be hiding wealth or assets, but cannot be sure, you should seek legal advice, as specialist divorce solicitors can help to investigate your ex-partner’s finances.
Do I Have To Pay Income Tax On Spousal Maintenance?
When your ex-partner pays spousal maintenance to you, they will have already paid tax on it as income. Therefore, you will have no additional tax to pay as the recipient.
However, receiving spousal maintenance could affect your entitlement to certain benefits or tax credits, if it pushes you into a new income bracket. There are <bloglink>online calculators<bloglink> that can tell you whether or not spousal maintenance is likely to affect your entitlement to any benefits.
What's The Difference Between Spousal Maintenance and Alimony?
They mean the same thing.
<bloglink>Alimony<bloglink> is simply the term they use in the United States, while in the UK we always say ‘spousal maintenance'.
Funding Your Divorce
As you’ve probably realised, seeking legal advice about spousal maintenance is a good idea.
However, many people struggle to pay the costs of a lawyer upfront
But there are now a new range of specialist lenders who provide funding to help pay for the costs of your divorce.
This specialist funding can help you pay for:
- Mediations sessions
- Solicitor led negotiations
- Going to divorce court
- And more...
Specialist funding is rapidly becoming one of the most convenient and cost-effective ways to fund your divorce.
Check out my divorce funding page to learn more: