Spousal maintenance is a term in family law that refers to an amount of money paid by one spouse to another after separation or divorce.
It is a system of financial support for spouses in Australia who are unable to maintain their pre-divorce living standards. This financial assistance is for a spouse or ex-spouse who needs help because they have given up time from their job, have had caring responsibilities, etc., which has reduced their income.
Spousal maintenance is a valuable right for spouses who may have sacrificed their own careers or education to help the other spouse pursue theirs.
Although the law surrounding this can be complex, there are some general questions and issues that we will explore in this article.
Who is eligible for spousal maintenance?
Spousal maintenance is an entitlement for anyone who is or was married or was in a de facto marital relationship.
There are specific time requirements that impact your ability to apply for spousal maintenance. These revolve around your divorce or separation dates, so it is critical that you have the correct separation date on hand to ensure you have not missed an application deadline.
Generally, you have to apply for spousal maintenance within 12 months of your divorce or two years of your separation. It is critical that you do not file past those deadlines or you may not receive any maintenance.
Spousal maintenance - how much do I deserve?
The court looks at a variety of factors when calculating spousal maintenance. If there are large differences between the incomes of you and your spouse, the court will attempt to determine the reasons why.
However, there are some generally accepted thumb rules about spousal maintenance.
First, the amount of spousal maintenance you request must be reasonable. You should be realistic in terms of the amount you need and the amount your former spouse can afford to pay.
Next, the court will consider you and your former spouse’s specific financial situations, including liabilities, assets, future earning potential, and expenses.
You and your former partner’s age and health also come into play during the court’s calculation.
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How do they calculate spousal maintenance?
There is no single process or approach to this calculation. The court works to balance the needs of both parties, not just yours.
Further, the court is trying to look at everyone’s future needs, not just the needs of today. As you might imagine, this is complicated and so having an experienced attorney at your side and representing your interests is greatly beneficial.
Specific items that the court will address during its evaluation include:
How do you set up spousal maintenance?
There are actually multiple ways to set up a spousal maintenance program. They do this most frequently through the Federal Circuit Court system, but you can also come to an agreement with your former partner outside of the court.
You and your former spouse can enter into a binding financial agreement (BFA) for spousal maintenance that acts as a contract. You may do this simultaneously with the property settlement of the divorce, although the two agreements are different.
The BFA can also be the basis for the court to write consent orders, which gives the parties even more legal protection.
The creation of spousal maintenance documents outside the courtroom can be confusing and difficult on your own. There are offices that will assist in these matters, such as family dispute resolution or a community legal service.
However, the best way to guarantee that your interests are represented and that the final settlement is enforceable is to have a family lawyer by your side. This expert can guide and advise you as you consider hard questions such as payment amounts and terms, length of time of payment, and other factors.
If you and your former partner cannot or will not come to terms, then court-ordered spousal maintenance is the next option.
The court will evaluate all the relevant information in its calculation and then come up with a payment number. However, the court does not stop there.
In addition to the payment value, the court will dictate whether it will be paid over time or in a lump sum. It will also say when the spousal maintenance must end. Some common reasons the court will end maintenance are:
The court’s decision has the binding effect of the law behind it, and there are penalties if the parties do not follow the order.
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How to apply for spousal maintenance
If you are applying for spousal maintenance, then consultation with a family law attorney is an excellent idea. The lawyer can help you complete and file your application form with the Federal Circuit Court, although it is possible to do it yourself online.
The court charges fees for filing, but the court may require your former partner to share in the fee depending on your circumstances. Additionally, the court may waive the fee if it deems it necessary.
Your former spouse must get a copy of the application so that they have fair notice of the proceedings and a chance to respond. Your lawyer can arrange for this notification.
The court will set up a hearing date and provide you with deadlines to disclose a number of documents. These will include evidence of debts, bills, income, and assets. You also will need to show information about your obligations for dependents and your lifestyle needs.
How long this takes will depend on how complex the issues are and how cooperative all the parties are. Furthermore, difficulty locating documents or resolving other issues may prolong the process.
Once you get to the hearing, you will have the opportunity to tell the court about everything you want them to consider. They also will review your documents and decide if they will make a legally binding spousal maintenance order.
Can I change the amount of spousal maintenance?
You may have the ability to change the amount, but it takes special circumstances.
If you simply made an agreement with your former spouse, you may be able to renegotiate with them. If you are not successful in making a new agreement, then you will have to apply to the court.
The Federal Circuit Court does not make changes to spousal agreements without significant reasons. These reasons could include:
As you can see, the court does not upend previous agreements or orders lightly. Thus, if you think you need a change in your spousal maintenance amount, you should consult with a family law attorney.
Our firm has more than 20 years of experience helping clients in all aspects of family law.
One of our areas of expertise is making sure that our clients get the outcomes in spousal maintenance proceedings that they deserve.