Wednesday, October 17, 2012

Family Lore Clinic: How is spousal maintenance calculated?


Unlike child maintenance, there is no formula used to work out the amount of spousal maintenance. How, then, is spousal maintenance calculated?

The first point to note is that the court is under a duty in all cases to consider whether a 'clean break' is appropriate, whereby neither party has any on-going financial obligation towards the other. Accordingly, spousal maintenance orders will only be made where they are appropriate, for example where one spouse's income is insufficient to meet their needs.

Having said that, how is spousal maintenance calculated when it is appropriate?

Firstly, each party must disclose to the other full details of their means, in particular their income and essential outgoings (usually referred to as ‘needs’). This disclosure should be given voluntarily, but if it is not, then the court can order it.

Once disclosure has taken place, the means of the party who seeks the maintenance should be considered, and a calculation made as to the shortfall between their needs and their income – this will indicate their maintenance requirement. If this calculation cannot be agreed, the parties may ask the court to deal with the matter.

Once the maintenance requirement is known, then the ability of the other party to pay that sum should be looked at. If they clearly can pay, then that may be the end of the matter; if they can’t afford the full amount, then there may have to be some adjustment.

It is important to note that there are no hard and fast rules when it comes to the calculation of spousal maintenance, for example a different approach may be appropriate in high-income cases, and there may be other factors that affect it. The above is just intended to give an indication of the sort of approach that is commonly taken.

The court may also make a nominal maintenance order. These are often made in favour of the party who is looking after the (dependent) children. Obviously, there will normally be child maintenance in such cases, but this can be out of the control of the court. Accordingly, some courts will make nominal orders, which the court can increase at a later date if the need should arise, for example if the child maintenance should stop for any reason.

(As usual, this is necessarily a simplification of the law. If you require more details or specific advice, you should consult a specialist family lawyer.)

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