Spousal Maintenance - Am I entitled to anything?
I have separated from my husband - he was the bread winner. I was at home raising our kids and working in a position that required no real qualifications - I am now earning $30,000 per annum. My former partner (lets say his name is Fred) is earning $150,000 per annum.
Fred is paying child support - but can I ask Fred to provide me with additional financial support even though we have separated? I just can't afford to pay my bills.
Yes you can - it is called spouse maintenance and the formula is simple!
Do you have a need?
If you can show you have a need and Fred has the capacity to pay - then yes - Fred can be asked to provide you with additional support.
Let's take it one step further. How do you work out whether you have a need? It is as simple as this -
Your weekly income - your weekly expenses = your need
My 4 tips to working out whether you have a need -
Work out what your income is;
Work out what ALL of your expenses are - make a list so you do not overlook any of them;
Exclude the expense if it is not reasonable; and
Work out what income you former partner has.
Apply this to our example. If you have an income of $600 a week and your (reasonable) expenses are about $950 a week - you have a need of at least $350 a week.
But is it that simple?
After you separate the Court can make orders that can require your former partner to continue to provide you with financial support so that you can meet your reasonable expenses.
Those expenses need to be reasonable.
After all the purpose of the financial support is to make sure you can support yourself – it is not to ensure that you can lavish yourself in expensive trimmings.
What is taken into account?
The court will look at:
1. Whether you have a need; and
2. Whether your former partner has the capacity to pay.
The court will also look at things like:
• your age and health;
• your income, property, and financial resources;
• your ability to work;
• your suitable standard of living;
• if your marriage/relationship has affected your ability to earn an income; and
• If you have kids under the age of eighteen who the kids live with.
But again the amount of financial support that you receive will also depend on what the other person can afford to pay.
After paying their reasonable expenses, your former partner may only be able to pay you an extra $200 a week and not the $350 that you need.
The Court needs to treat both you and your former partner fairly.
Sometimes one party's ability to earn an income is affected because of the relationship. For example - you might have been out of the workforce for an extended period of time looking after the kids and maintaining the household.
Getting back into the workforce will be more difficult if you have been out of it for a lengthy period of time and sometimes retraining might be required.
Is there any time limits to apply and what if I repartner?
There are time limits for applying for this type of support such as -
For married couples - within 12 months of your divorce becoming final; and
For de facto partners - within 2 years of your relationship ending.
If you do not apply within these time frames then you will need to ask the Court for permission to seek an order for maintenance. You have no guarantee that the Court will allow you to seek this type order - if you are in this position then you should obtain legal advice immediately.
Now let's be realistic - it would not be fair for you to receive financial support from your former partner forever. Time frames are usually placed on the length of time you receive the financial support for.
This could be a set amount of time or even conditional upon you undertaking training/studies.
Also, if you remarry you are not entitled to receive financial support unless the Court says otherwise.
If you start a new de facto relationship than the court can also take into account the financial relationship that exists between you and your new partner.
It might be that the financial support you receive from your new de facto means that you can no longer show that you have a need for the financial support from your former partner.
Now remember - not everyone can amicably agree to payments of spouse maintenance.
Sometimes the person that is required to pay the spouse maintenance is unhappy about feeling forced to provide you with additional financial support - particularly if the end of your relationship has left a sour taste in their mouth.
You may need the Court to order the payment for you.
If that is the case, and you are not sure what you need to do going to see a solicitor might need to be your next step.