Spousal Maintenance - Do I Have to Pay?

Spousal Maintenance - Do I Have to Pay?

Do I have to pay Spouse Maintenance?

There are circumstances where, after separation, the Court may make orders that require a person to provide their ex with financial support so they can meet their reasonable expenses. 

It may be necessary to pay spousal maintenance if your ex has a need and you have the capacity to pay.

Why?

It may be the case that your ex’s ability to earn an income has been affected due to choices you both made during your marriage or defacto relationship.

For example, one of you may have had a ‘fifo’ (fly-in-fly-out) position, which made it difficult for the other to work full-time when children came along. When children came along, you both decided the non-fifo parent would step out of the full-time workforce to look after children and maintain domestic life for the family. 

Getting back into the work force may be difficult when a person has been out of it for a lengthy period. It can take time and sometimes retraining might be required, particularly if seeking a better paying position with a higher income.

How much Spousal Maintenance do I need to pay?

An Example: Meet Michelle and Tim

Michelle has an annual income of $130,000 and her ex, Tim has an annual income of $40,000. They also have three kids who live primarily with Tim as Michelle’s work is fly-in fly-out.

Michelle pays child-support, but Tim still needs financial support until he completes some retraining to upgrade his employment to a higher paid position.

The rule of thumb to work out if Tim has a need for spousal maintenance is:

Tim’s weekly income less his weekly expenses = need.

Once it has been established that Tim has a need, Michelle needs to consider if she has the capacity to pay. To do this Michelle should:

1. Identify her after tax income.
2. Calculate her expenses. She should make a list and ensure she doesn’t overlook anything.
3. Exclude expenses that are unreasonable.
4. Consider whether Tim has a need – ask for disclosure regarding his income and expenses.

Everyone’s expenses need to be reasonable.

If Michelle can demonstrate she doesn’t have the capacity to pay spousal maintenance, a Court cannot order her to provide financial support (by way of spousal maintenance).

Time Limits

There are time limits for applying for spousal maintenance. 

• For married couples – you must apply to the Court within 12 months of your divorce becoming final; and 
• For de facto partners – you must apply 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 (or leave of the Court) to seek an order. There is no guarantee the Court will give permission. If you are in this situation, I would recommend you seek advice from an experienced family lawyer as soon as possible. 

How long do Spousal Maintenance Orders last?

It would not be fair for someone to receive spousal maintenance from their ex, indefinitely.

When orders are made, time frames are usually included. Payment may be for a defined period and/or the order may be conditional upon you undertaking training/studies. 

If you remarry, you are not entitled to spousal maintenance unless the Court says otherwise. 

If you commence a new de facto relationship, the Court can also take into account the financial relationship that exists between you and your new partner. It may be the case that financial support you receive from your new de facto means that you can no longer show that you have a need for financial support/spousal maintenance from your ex.