Protecting Your Children through Divorce

Posted on: 19 June 2020

Child maintenance and spousal maintenance after a divorce are not the same thing. When one party is ordered to pay child maintenance, this is to pay for the expenses associated with your children, generally when the other party has been awarded primary or even shared custody. Spousal maintenance is generally only ordered when one party will be at a significant financial disadvantage following the dissolution of the marriage. But is spousal maintenance a permanent, ongoing arrangement? Will your former spouse be paying for your upkeep for the rest of your life or vice versa?

A Financial Assessment

An order of spousal maintenance is not a foregone conclusion. It's only awarded when one party can prove that the quality of their life (due to diminished finances) will be adversely affected when they divorce their spouse. The age and general health (and subsequent ability to work) of both parties will be assessed, along with existing finances, as well as whether being married affected either party's ability to work, such as if one party was responsible for the upkeep of the shared family home instead of paid employment.

Reassessment

Once this assessment of the financial means of both parties has been completed, an order for spousal maintenance can be made by the court. The order can (and likely, will) be reassessed at a later stage when circumstances have changed. It might be that the order is terminated or the amount is reduced when the receiving party finds suitable employment or even completes training or education that will improve their chances of rejoining the workforce. If spousal maintenance is linked to child maintenance, the amount of spousal maintenance might be reduced when the children reach a certain age, which then allows the receiving party the opportunity for employment when their children are in full-time education. The specific amount can be determined in mediation, which is then formalised by the court. You might wish to engage family lawyers to negotiate on your behalf during mediation, particularly if you feel that your spouse will object to having to pay you maintenance. 

Changed Circumstances

The party ordered to pay spousal maintenance might also find themselves in changed circumstances. In the event of losing their job, this party might request that the payments are reduced or terminated. Self-termination of employment will not necessarily absolve the party from making payments, especially if this was a calculated decision to reduce their financial obligation to the other party. The earning capacity and job prospects of that party might be sufficient as to have no effect on their continuing obligation to pay spousal maintenance. 

Spousal maintenance isn't an automatic right, but when either party feels they're entitled to it, it's important to note that it might only be a temporary right.

For more information, contact a family lawyer.