Does spousal maintenance change if financial positions change?
The issue of spousal maintenance is always a controversial topic, and many separated (and soon-to-be separated) couples find the subject endlessly frustrating.
Spousal maintenance (sometimes called spousal support) is financial support that one spouse provides to the other. After a separation or divorce, one person pays the other former partner a determined amount in order for the ex-spouse to be able to reasonably support him or herself.
Unfortunately, determining spousal maintenance can be tricky. Couples must wrestle with the following questions:
- Who is entitled to it?
- Who pays it?
- How much should it be?
- What’s a fair amount?
- How long should it be paid for?
Since money and financial interests have a way of making otherwise amicable discussions turn into schoolyard quarrels, spousal maintenance is generally decided and ordered in the Family Court.
Unlike some other countries, Australia doesn’t use spousal maintenance as a penalty. It isn’t meant to be a punishment for the person who has to pay, nor as a reward for the one who gets paid. Instead, it is used as a temporary safety net for those who are unable to support themselves once the marriage or de facto relationship ends. As such, the courts take determining spousal maintenance extremely seriously in order to ensure fairness. This is why they consider a variety of financial facts and investigate each spouse’s financial position. Some of the items that will be examined include:
- Ability to pay. The court will review each partner’s income to determine whether either one has the financial ability to pay maintenance. Taxes and insurance expenses are deducted from the income, but voluntary debts such as car payments, credit card bills, and so on are not usually taken into consideration.
- Income and earning capacity. The court will determine what income the proposed maintenance recipient may be able to earn, as well as his or her ability to sustain gainful employment. In many cases, one spouse will have suspended career plans in order to concentrate on the home and family; the courts will recognise this spouse may need a period of retraining before returning to the labour force. If the court decides that he or she can pay for an adequate lifestyle on their own, spousal maintenance will be denied.
- Assets. In addition to income, the court will also investigate the payee’s assets (motor vehicle, house, etc.) to determine financial dependence and maintenance requirements.
- Expenses. Once the court calculates potential earnings, it will then calculate how much income each spouse will need for necessary expenses such as shelter, child care, food, utilities, and other regular costs. If expenses exceed income and make it impossible for the payee to support a reasonable standard of living, the court will then determine how much the payer needs to supplement.
Once every financial leaf has been turned over and examined closely, the court will determine a reasonable monthly support amount. It will also determine the length of time in which the support will need to be maintained. In most cases, the obligation will only be for up to two years, at which point the payee will be expected to be able to support themselves.
Remember, a collaborative agreement between the spouses is always useful in settling the terms of a separation for married or de facto relationship couples. If the partners present the court with a mutually agreed-upon spousal maintenance agreement, the court will rarely reject it. Contact Wayne Dawkins Lawyers today for help in getting to an agreement you can both live with.