The first thing we must say is that every aspect of family law: divorce, financial arrangements, children arrangements are at the discretion of the Court. The judge will decide based on what he hears from the parties.
Lawyers (including Net Lawman) can try to formulate likely outcomes, but there are no fixed formulae.
This is supposed to allow the necessary flexibility for a judge to make a fair decision. In our opinion it is simply a recipe for uncertainty and high legal bills. However, we all live with the reality.
This article covers maintenance payments to a former spouse or civil partner. We are not referring to maintenance for children, which is a different subject.
Maintenance (sometimes called alimony) is only one ingredient in a financial settlement. For many couples it is by far the most important because it impacts immediately on their respective standards of living. However, it is never assessed by a judge in isolation. Every facet of the financial affairs of each party must be disclosed to the other. A failure to do so honestly is likely to result in prison for contempt of court.
Other financial matters to be considered are capital assets of every kind, including business interests,
Maintenance payments (known as Periodic Payments in legal terms) are regular payments made by the higher earning partner to the lower or non-earning partner. Unlike other financial settlements, alimony can continue for life (certainly after divorce, and even after the payer's death!). There are three questions you might want to consider when trying to work out maintenance:
- Should there be maintenance at all?
- If so, for how long should it continue?
- How much money should I pay or receive?
Should there be an order for maintenance?
This depends on your circumstances. If you're both working, your marriage was relatively short and there are no children, then alimony is probably inappropriate.
You should rely only on other financial adjustments of a capital nature, such as paying off joint debts so that these do not burden one of you more than the other. This is often referred to as a clean break.
Generally, judges now prefer clean break orders because it is usually in the interest of the parties not to live their lives with resentment and issues arising from maintenance and the frequent and expensive court appearances that usually follow.
Quite apart from payments specifically for children, a judge may well make an order against the principal earner when the other person must care for young children.
Does maintenance have to continue forever?
Maintenance payments are usually made 'until further order'. That means your order continues until one of you dies or applies to the court for the order to be varied or terminated. Alternatively, the order can be made to determine on the happening of some specific event. Examples are:
- young children reaching secondary school age
- the receiving partner completing an educational course
- the re-marriage of a partner
If a party wishes to ask the court for a change in the order, they can usually do so at any time - subject to fees and legal costs, of course.
Reasons for change would include the partner’s failure to disclose voluntarily a condition which would terminate the arrangement. Other examples are:
- the other being in a position to be able to work
- the payer no longer being in a position to pay
- one party receiving a substantial legacy
- one party becoming the provider for a new family
At any time, a party may also apply for a final order (clean break). This may involve a level of disclosure and argument that is unacceptable to the parties without prior agreement.
That agreement will usually involve the paying party 'buying off' the payee with a 'lump sum settlement'. The amount will be based on negotiations taking into account the value of the payments, the comparative levels of capital assets and of course, the chance of the Court favouring the other of them if one is unreasonable.
How do we work out the amount?
Unless you are very wealthy, when you separate you are likely to have to make some adjustments to your standard of living, whether you are the payer of maintenance or the recipient. It is also always worth considering how maintenance might affect the state benefits if one of you may be receiving.
A good starting point is for each of you to make a list of all your reasonable outgoings (or likely outgoings if you're still living together). Make this as detailed as possible and don't forget to include any child maintenance in your outgoings if you have children. Then note down your respective incomes from all sources (so include state benefits, child maintenance if you're the one receiving it, share dividends etc. as well as your earnings from work) and deduct the outgoings from the income.
For example:
Mr. X has an income of £3,000 after tax per month. His outgoings, including child maintenance of £450 per month amount to a total of £2,100. Mrs X has an income of £1,950 net per month (including the child maintenance of £450 Mr X is paying). Her and the child's outgoings amount to £2,500.
Mrs X needs £550 to make up the short fall; Mr X has £900 out of which he could pay this.
An important note about your will
Your will does not become void on divorce or separation (read about the effect of marriage and divorce on your will). If you made a will after you married that leaves your estate to your wife or husband, then you will probably want to make a new one.
We provide a range of free last will and testament templates that you may like to look at.