Understanding Spousal Maintenance

Understanding Spousal Maintenance: How Is It Calculated and When Is It Awarded?

Spousal maintenance, where the court orders one spouse to pay maintenance to the other, is synonymous with separation and divorce, but how is it calculated and, more importantly, when is it awarded?

The first thing to note about spousal maintenance is that, as the above indicates, it can be awarded when the parties separate. It is not dependent upon the parties divorcing. It is quite possible for the maintenance to continue for as long as both parties remain alive, even if they never divorce.

Another important point to remember is that either party to a marriage or civil partnership may seek maintenance for themselves, including husbands, wives and partners in opposite-sex marriages and civil partnerships, and either party in same-sex marriages and civil partnerships. When we talk of spousal maintenance we usually think of wives seeking it from husbands in opposite-sex marriages as that is the most common scenario, but it is not the only one. However, for the sake of simplicity we will generally use that scenario in this article, hence we will refer to ‘spousal maintenance’, and to wives seeking it from their (ex-) husbands.

Having got those things out of the way, the first question we must answer is: what is spousal maintenance?

What is spousal maintenance?

A spousal maintenance order is an order requiring one spouse to make periodical payments to the other. The payments may, for example, require the paying spouse to pay a specific sum to the other spouse each month.

The payments can be secured or unsecured. Secured spousal maintenance orders can be made where the court is concerned that the maintenance may not be paid. In such a case the payments are secured against an asset or property of the paying party, so that the asset may be used to cover any unpaid maintenance. Secured spousal maintenance orders are actually quite rare, and any party asking for one will have to justify it, for example by showing that the other party is unlikely to pay and lives abroad (thereby making it difficult to enforce the order – see below).

Another type of spousal maintenance is ‘maintenance pending suit’, sometimes referred to as ‘interim maintenance’. As the name suggests, maintenance pending suit is a temporary maintenance order which lasts until the divorce is concluded. It is designed to provide for the income needs of the recipient spouse while the divorce is proceeding, and before the court makes a full inquiry into the income needs of the parties, which it will do when it makes a final financial remedies order.

When is spousal maintenance awarded?

Contrary to what many may think, spousal maintenance orders are not made in every divorce. In fact, in recent times orders for more than a nominal sum (see below) have actually become comparatively unusual.

In simple terms a spousal maintenance order will be made in cases where one party does not have sufficient income to meet their needs, and the other party has sufficient surplus income above their needs to be able to afford to pay the maintenance.

The ‘classic’ situation here would be where the husband is the ‘breadwinner’ and the wife is the ‘homemaker’, who has not worked during the marriage, in order to look after the home and bring up the children. In such circumstances the wife may not have the earning capacity to meet her income needs, at least in the short term, and the husband may be ordered to pay spousal maintenance to cover those needs.

And here we see a reason why spousal maintenance orders are made less frequently now than in the past: far more wives are now working than in previous times. They may thus have their own financial independence, and therefore not require maintenance.

Spousal maintenance orders made in the course of the marriage have an additional requirement: that the paying spouse has failed to provide reasonable maintenance for the recipient spouse. In practice, however, this requirement makes little difference.

As mentioned above, the court can make a spousal maintenance order for a nominal sum. The purpose of such an order is to cover any future possibility that the recipient spouse may need maintenance (in other cases when no maintenance order is made the court will dismiss all maintenance claims by either party, so that no such claims can be made in future).

The most common scenario where nominal maintenance is awarded is where the children live with the recipient spouse and the other spouse pays child support maintenance for them. The court of course has no control over the child support, which is dealt with by the Child Maintenance Service, if it is not agreed between the parents. Accordingly, some judges may be concerned that the parent looking after the children may suffer financial hardship if the child support is not paid, so they make a nominal spousal maintenance order in that parent’s favour, thus giving them the possibility to apply to the court to increase the maintenance at a later date (see below).

How long does spousal maintenance last?

A spousal maintenance order can begin on the date that the application for maintenance was made. Accordingly, the order can be backdated, as it will usually be made some time after the application.

In the case of an unsecured spousal maintenance order, it will last until the death of either of the parties, until the remarriage of the recipient spouse, until such date as the court may specify, or until further order of the court.

In the case of a secured spousal maintenance order, the duration of the order is the same, save that it can continue beyond the death of the paying spouse.

As to an order made for a specified duration, the court may, for example, specify that the maintenance should last until any children complete their education, or until a date by which it considers that the recipient spouse should have achieved their own financial independence.

As we will see in a moment, a party can apply to the court at a later date for the duration, or term, of an order to be extended. However, they cannot do so if, at the time of making the order, the court has directed that neither party shall be entitled to apply for an extension of the term of the order.

How is spousal maintenance calculated?

In deciding the amount of a spousal maintenance order the court will take into account all of the circumstances of the case including, in particular, the incomes (or earning capacities) of both parties, and their income needs, or outgoings.

The court will of course require evidence of both parties’ incomes and outgoings.

As to the parties’ needs, this will be assessed by reference to the standard of living enjoyed by the parties during the marriage, although in many cases it will be expected that there may have to be a reduction in the standard of living post-separation.

Having said that, the court will not necessarily accept all of a party’s claimed outgoings. Outgoings that the court considers to be unreasonable will be ‘disallowed’.

Once the court has considered all of the circumstances it will decide how much maintenance the recipient reasonably requires, and how much the payer can afford.

It should also be noted that the court can specify that the amount of the maintenance should increase or decrease at a certain point in the future, to reflect anticipated changes in the parties’ circumstances.

Variation of spousal maintenance orders

Spousal maintenance orders can be varied at a later date, both as to the amount of the order and (unless the court has directed otherwise – see above) the duration, or term, of the order.

Before the court varies the order it will want to know that there has been some significant change in the circumstances of one or both of the parties, such that the original order is no longer appropriate.

The variation may, for example, be to increase the amount of the maintenance because the recipient’s needs have increased, or the payer’s income has increased. Or it may be to reduce the amount of the maintenance because the payer can no longer afford to pay the amount of the original order (in which case the court may also remit any arrears that have accrued under the order).

And the term of an order may be extended if, for example, the recipient is taking longer to secure her financial independence than was anticipated when the original order was made.

A common reason for a paying party to ask the court to vary a spousal maintenance order is that the recipient spouse is now cohabiting with another person, and that person is supporting them. Note that, whilst this may be a reason to reduce the amount of the maintenance, possibly to a nominal sum, it will not necessarily be a reason to stop the maintenance entirely.

Enforcement of spousal maintenance orders

Spousal maintenance orders, like all other court orders, must be obeyed. But what can the recipient of the maintenance do if the other party fails to pay it?

The answer is to request the court to take enforcement action.

There are various methods of enforcement available, but often the best way to enforce a spousal maintenance order is by way of an attachment of earnings order.

An attachment of earnings order requires the payer’s employer to deduct a regular sum from the payer’s wages, which will be paid towards the maintenance. The court will decide how much the deductions will be, based upon how much it believes the payer can afford. The deductions will usually be the amount of the maintenance, plus a sum towards any arrears that have accrued.

Of course, attachment of earnings will not be possible where the payer is self-employed, in which case another method of enforcement should be used, such as a third party debt order, which freezes money in the payer’s bank account and orders that it be paid to the recipient of the maintenance.

Seeking advice

If you have a spousal maintenance issue then you should seek expert legal advice. We have a team of expert family lawyers who can provide you with the advice that you need. To speak to one of our specialist lawyers, complete the form on this page.