If your former partner is struggling financial following a divorce or separation, then the chances are they may have a valid claim to spousal maintenance.
In the event this happens – you may be wondering how much is spousal maintenance? And whether you have to support your former partner financially after you separate?
The following article will discuss everything you need to know regarding these two questions.
What Is Spousal Maintenance?
Spousal maintenance refers to the payments made from one party to their former partner for the purpose of them maintaining a reasonable standard of living following the breakdown of your marriage or De facto partnership.
These payments are a means of financially aiding the payment receiver to re-establish themselves whilst pursuing education or seeking employment.
S 75 of the Family Law Act (1975) provides that whether a claim for spousal maintenance is successful will depend on your situation.
A successful spousal maintenance claim will typically look something like this:
1. Making regular financial payments on a weekly, fortnightly or monthly basis to your former partner; or
2. For certain items such as the marital home to be sold and the proceeds of that sale to go to your former partner in a lump sum.
When Is Spousal Maintenance Applicable?
Firstly, when you have the financial means to support your former spouse.
Secondly, where an application for spousal maintenance is filed within the required time frame. This will differ amongst divorced couples (marriage) and separated couples (De facto partnerships).
1. For divorce – spousal maintenance must be awarded within twelve months of divorce under s 44(3) of the Family Law Act (1975)
2. For separation – spousal maintenance must be awarded within twenty-four months of separation subject to s 44(5) of the Family Law Act (1975)
It is important to note that it may be challenging to agree on an exact date of separation to satisfy this time limit with De facto separation.
Accordingly, if parties cannot agree on a date of separation, the Family Court of Australia will consider evidence such as photos, financial documents and witness statements to determine that date.
How The Court Will Determine ‘How Much Is Spousal Maintenance?’
In determining the answer to the question of ‘how much is spousal maintenance?’, the Court’s will consider several factors:
- The assets and resources of both parties, including their income and any property they own
- The earning capacity, or potential earning capacity of each party
- If one party primarily cares for the children
- How long the couple was together for
- Whether the relationship has impacted the earning capacity of either party – e.g. where one party agrees to be a stay-at-home parent
- Any other obligations of each party – such as to take care of other persons
- Whether there are any pre-existing financial agreements made, such as a binding financial agreement (prenup).
What Are The Main Considerations?
Many factors are considered in determining how much spousal maintenance payments will be.
The primary considerations will generally be based on assessing the income and assets of both parties in contrast to their expenses.
From here, it will be determined whether one party requires the spousal maintenance benefit and, if so, whether the other party can afford to pay it in their situation and just how much they can afford to pay. As such, there is no way to provide a definitive answer to the question of ‘how much is spousal maintenance?’ without assessing your particular circumstances on an individual basis.
How Do I Pay Spousal Maintenance?
After the order has been finalised and the Court has determined the payment figure, the way it is paid will also be determined.
There are several modes of payment for spousal maintenance, which include:
- Regular periodic payments are the most common form of payments and can be paid weekly, fortnightly, or monthly.
- A one-off lump sum payment
- Paying for expenses such as loan repayments, accommodation, health insurance or other costs related to vehicles.
Importance of Seeking Legal Advice
When discussing matters such as ‘how much is spousal maintenance?’ it is essential to remember that to obtain the most accurate account of what you can expect to pay, you need to discuss your circumstances with an experienced family lawyer.
Here at JB Solicitors, we’ll make the process as pain-free as possible. We have fixed-fee pricing for family law, giving you a clear sense of the costs from the start, and we will be sure to help you out every step of the way.
With years of experience under our belt, we pride ourselves on making each client’s family law experience as positive as possible.
Contact JB Solicitors today to speak with one of our friendly and experienced family lawyers.
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