Spousal maintenance is often misunderstood and there is a lot of confusion surrounding the subject. How do I apply? And do I have to wait until after the divorce to be eligible to apply? In this article, we discuss these issues and more.
Spousal maintenance is often misunderstood and there is a lot of confusion surrounding the subject. How do I apply? And do I have to wait until after the divorce to be eligible to apply? In this article, we discuss these issues and more.
If you have a family law issue and require legal advice to understand your options, contact specialist divorce solicitor Jemma Slavin of Stowe Family Law. Regional Director at this well-respected specialist family law firm, she is committed to offering a bespoke service to her clients which focuses on their specific needs and objectives.
Can I claim spousal maintenance after my divorce?
The normal time to agree or apply to a court for spousal maintenance is while the divorce process is ongoing. But if you are already divorced and wish to apply for maintenance from your ex, you may be able to do so providing you do not have a clean break order in place.
Generally speaking, spousal maintenance tends to be negotiated as part of the divorce settlement, or in the absence of an agreement between the parties, by court order. If your divorce has been finalised and a clean break ordered, you will be unable to make any further applications for financial support from your ex-spouse. This is because a clean break order permanently and irrevocably severs the financial ties between a couple on divorce.
If, however, you have something called a “nominal maintenance order”, then you may be able to apply for spousal maintenance at any time. A nominal maintenance order is made in favour of one party, if at the time of the divorce they have sufficient funds to meet their needs, but spousal maintenance may be needed in the future. The court makes an order for a nominal amount, typically £1 per year, although the money is never actually paid, solely to keep the claim open as a safety net. A change might be medical needs or a disability which means they cannot work and earn their own money. It is common for nominal orders to be made for a limited term that ties in with the children reaching a certain age or the end of their full-time education.
Can spousal maintenance be backdated?
Sometimes, spousal maintenance can be backdated. This means that payments can cover a period of time before the date the payment begins. This may be appropriate in circumstances where there was a delay in reaching a decision about spousal maintenance. Backdated maintenance can be paid either as ongoing monthly payments or as a lump sum.
Can my ex pay spousal maintenance as a lump sum to get a clean break?
In some cases, there are sufficient funds in the matrimonial asset pot to “buy out” the financially weaker party’s financial claim. This is achieved by calculating a sum of money that the receiving party can be given. They can then invest the money, if they wish, and receive an income from it, instead of receiving maintenance payments.
A lump sum doesn’t necessarily have to be paid in one payment, although it often is, and can be paid in more than one instalment. For example, a part payment when the court order is made, or shortly afterwards, followed by further payments when the house is sold, is extremely common.
Where a lump sum capitalises maintenance payments, it will facilitate a clean break and end any future claims that are able to be made between a divorcing couple.
Insuring spousal maintenance
If you receive spousal maintenance, or in the process of being awarded it as part of your divorce, it is worth thinking about insuring the payments. This means that you will continue to receive an income if your ex-spouse dies. The policy can provide a lump sum or monthly payments if they died whilst you were still receiving spousal maintenance. To do this, either you or your ex can take out a life insurance policy on their life.
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