Spousal Maintenance - Am I liable to pay anything?
We have separated. My former partner (Jane) wants me to pay her more than just child support. Do I have to? Good question!
After you separate the Court can make orders that will require you to continue providing your former partner with financial support so that they can meet their expenses.
This may not seem fair – I mean you are no longer together why the heck should you have to continue paying your former partner money right?
Unfortunately it’s not so black and white.
Sometimes one person’s ability to earn an income is affected because of choices made during the relationship. For example – your former partner 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 work force may be more difficult if you have been out of it for a lengthy period of time and sometimes retraining might be required particularly if your former partner needs a higher income in order to support themselves.
The amount of financial support that you might have to pay your former partner will also depend on whether your former partner can demonstrate that they have a need and whether you have the capacity to pay.
For example let’s say you have an income of $130,000 per annum and your ex is earning say $40,000 per annum. You also have three kids and they live primarily with your former partner because you work away.
Even with the child support you are paying there is still a chance your former partner may be able to show she has a need for financial support.
To work out whether you might find yourself providing financial support to your former partner you need to work out whether your ex has a genuine need. You can work that out by using the formula:
I – E = N
What does that mean? Well, I is your former partner’s income, E is your former partner’s expenses and N is your former partner’s need
If your former partner has a need you then need to work out if you have the capacity to pay. You can work that out by using the formula:
I – E = C
Here, I is for your income, E is for your expenses and C is your capacity to assist with your former partner’s need.
My top 4 tips for working out if you have the capacity to pay spousal maintenance are:
Work out your after tax income;
Calculate your expenses - make a list so you do not overlook any – these do need to be reasonable expenses;
Exclude any unreasonable expenses i.e. cannot factor in a $5,000 holiday every 6 months… unfortunately); and
Consider whether your former partner has a need – ask for disclosure regarding your former partner’s income and expenses if they are asking you to assist with their need.
Both your expenses and your former spouses expenses need to be reasonable - the purpose of paying the financial support to your former partner is to make sure they can support themselves – not so they can lavish themselves with the finer things in life.
To download a list of possible expenses that we have prepared to help guide you by simply completing an online enquiry on our website and in the enquiry type “Please send me the expenses form”.
If you can demonstrate that you do not have the capacity to pay your former partner then a Court simply cannot order you to provide the financial support.
There are also time limits for applying for an order for spouse maintenance that you need to be aware of, i.e. you need to make the application:-
For married couples - within 12 months of your divorce becoming final; and
For de facto partners - within 2 years of your relationship ending.
Now let's be realistic - it would not be fair for you to have to provide financial support to your former partner forever. Time frames are usually placed on the length of time you are to provide the support for.
This could be a set amount of time or even conditional upon your former partner completing training/studies and if they remarry they will not be entitled to receive financial support unless the Court Orders otherwise.
Also if your former partner starts a new de facto relationship then the financial support they receive from their new partner may mean that they can no longer show that they have a need.
If your former partner is asking you to pay spousal maintenance you may need to consult with a lawyer to talk about the steps you need to take.