Finances often come into question during divorce proceedings and this can be in a variety of forms: What should happen with the family home? What should happen with any savings? What financial support should be provided by one party to the other?
Here, we will talk about maintenance as part of a divorce, specifically child and spousal maintenance. We will also tell you more about the legal process involved. Lastly, we will tell you how we can help you, no matter which side you fall on.
What is Maintenance?
Outside the world of English divorce law, maintenance is used to simply refer to that which is done on a regular basis to keep something in working order. In a way, it is the same here. The purpose of financial maintenance on divorce is to help a party to meet their day to day needs.
Spousal maintenance is any money that you might pay to help your spouse financially following separation. There are two important considerations regarding spousal maintenance: how much should be paid and for how long? The answer to both these questions will vary case to case, for many different reasons. Your solicitor will need to understand both your and your spouse’s financial position (i.e. following financial disclosure) before they can advise you fully. Your solicitor will help you to look at matters in the same way that the Family Court would, and where possible try to negotiate on your behalf using the court’s principles.
Child maintenance, as the name suggests, places the focus on your child or children. This area is a little clearer in terms of the expectations on the paying party. The Child Maintenance Service (“CMS”) has a prescribed formula to determine how much child maintenance is payable. This is often a useful starting point for parties during negotiations and many separating couples agree payments at that level, without any further input from the court or the CMS (formerly the Child Support Agency or CSA).
What happens once the level of maintenance is decided?
If you are divorcing, the level and term of maintenance should be included in a financial order. The duration of both payments may be different: for example, child maintenance may cease when the child finishes full-time secondary education whereas spousal maintenance could be for a shorter or longer period, or even joint lives.
Changes to Maintenance
If the level of child maintenance is not included within a financial order, either party can refer the matter to the CMS for a reassessment if they think that the level of maintenance should change in light of any changes in the paying parents income. If the level of child maintenance is included within the financial order, then the parties cannot refer the matter to the CMS until 12 months after the date of the order. Child maintenance can go up or down.
Spousal maintenance is also capable of variation, but the party requesting the change in maintenance would need to show why the change is necessary. It could be because the receiving party’s needs have changed or the paying party’s ability to pay is reduced. Again, maintenance can be varied both upwards and downwards, depending on what is fair in the circumstances of the case
With regard to child maintenance, the presumption is that maintenance will continue while the children are financially dependent upon their parents. If parties are trying to agree matters as part of the divorce, this could mean payments stop when the child reaches 18 or perhaps finishes secondary or even tertiary education.
Spousal maintenance can be discontinued in a variety of ways. Firstly, it may be that the maintenance is payable for a specified number of years and that term expires. Secondly, the spouse receiving payments may get remarried, in which the spousal maintenance is discontinued. Death may also mean that any spousal maintenance payment are no longer needed. Finally, a judge retains discretion to terminate payments if the paying party can justify that this is fair in the circumstances.
Why You Need Legal Advice
Although this article may seem straight forward, so far, you should seek legal advice if you think that maintenance could be an issue. It is important to seek advice at an early stage as it may be an important factor in how matters are dealt with. This is particularly the case if one or more of the parties is an international.
Contact Us Today!
No matter if you believe that you are entitled to maintenance, or if you are being taken to court by someone seeking maintenance, we can help. We have helped many couples settle these types of cases without ever stepping foot inside the courtroom for a hearing. Just give us a call today and tell us about your situation. We can arrange a meeting with one of our specialist solicitors (either by telephone or face to face), and let you know what further information we need from your to get started helping you. There is no obligation when you make the phone call – our office and staff is here to help! Let us tell you just how we can help with your maintenance situation today.