Lynda Kearns: What is Spousal Maintenance?

Spousal maintenance is a payment from one spouse to the other spouse to assist in meeting a deficit between income and expenditure following the breakdown of a relationship.

If a spouse is unable to meet his or her reasonable financial needs after a separation, that spouse may be entitled to obtain spousal maintenance.

The amount of spousal maintenance to be paid is based in part on an assessment of the parties’ previous standard of living. The court also needs to assess whether the spouse in a better financial position has the means to meet the other’s reasonable financial needs for a set period.

In determining whether someone should have to pay spousal maintenance the court will look at their individual circumstances, their potential earning capacity, their financial resources and whether they are supporting any other person.

Interim spousal maintenance lasts for 6 months and is a periodical payment by way of weekly or monthly instalments. Applications can however be made for past or future spousal maintenance including lump sums. Generally parties are expected to become self-supporting following the dissolution of their marriage which they can apply for 2 years after they separate.

In order to establish the grounds for spousal maintenance it is important to produce a comprehensive budget showing what expenditure has occurred in the past and what expenditure will be expected in the future. A template is available on request to assist with completion of those budgets.

Included in that budget can be legal fees and the cost of accounting advice. That may be very important if there is a dispute about property which is likely to head towards litigation.

Applications for interim spousal maintenance can be extensive and time consuming. It is preferable to try and reach agreement on the basis that following a separation there should be a “period of grace” where as much as possible both parties financial position does not alter.

If one party is working and the other is caring for their children, then it may be very difficult for the party caring for the children to survive financially following a separation. Consideration should be given to what steps can be taken to improve both parties earning capacity. That may include funding the cost of ongoing educational training particularly if one spouse has been out of the work force for some time.

Legal advice at an early stage may be of assistance in determining whether a claim of spousal maintenance is appropriate, what sum can be achieved and a cost benefit analysis of proceeding to a court hearing or attempting to negotiate a resolution outside of court.