When a marriage or de facto relationship ends, there are often circumstances where one of the people involved will make financial payments to their former partner, otherwise known as spousal maintenance. But there are also a lot of misconceptions about how this is done, which can lead to further conflict between former couples.
Probably the biggest mistake people make is thinking that maintenance is something are automatically entitled to if, for example, you are home minding the kids and your former partner is out working. This is not the case and you’ll need to show why your former partner has an obligation to financially support you after separation. Usually this can be proved where, say, you’re unable to adequately meet your reasonable living needs but your former partner has the capacity to pay maintenance after meeting their own reasonable needs.
How is it decided who will pay maintenance?
There are a number of factors taken into account in working out whether a former partner should pay maintenance, including:
- Which party has care and control of any children from the relationship.
- The age and health of the person who is seeking maintenance payments.
- That person’s ability to obtain appropriate and gainful employment, as well as their current income, property and financial resources.
- What represents a suitable standard of living for the person claiming payments.
- Whether the marriage affected the ability of the person making a claim to earn an income.
One thing to be aware of is that the person paying maintenance is only obligated to do as far they are reasonably able, even if their former partner is unable to adequately support their own needs.
How are maintenance payments made?
Maintenance payments are generally made through:
- Periodic payments, as set out in your agreement or a Court Order;
- A lump-sum payment;
- Directly paying the other party’s expenses.
Time limits and the importance of advice
While you and your former partner can come to your own agreement about spousal maintenance payments, perhaps when you are reaching agreement about other issues such as with parenting arrangements and property settlement. If you cannot reach agreement on the issue of maintenance you should seek legal advice from one of or Sydney family lawyers as to your eligibility and prospects to apply for a Court Order.
Applications to the Court for spousal maintenance must be made within 12 months of a Divorce Order becoming effective or within two years of the date of separation for de facto couples.
A legal professional with experience in this area can prove invaluable in helping you get your affairs in order to meet these time limits.
Good legal advice will also be useful if and when the circumstances of either yourself or your former partner’s change. Also, to assist you in carrying out necessary investigations to ensure your former partner discloses their true financial position.
Maintenance orders from the Court may need to be changed, varied or ended if the person receiving payments:
- gets married again;
- moves into a better financial situation, maybe because for example they have entered into a new relationship;
- the responsibility for childcare changes, such as when the children become adults; or
- earning capacity improves.
An application to the Court to change the maintenance orders will be required in these instances and again, it is a great idea to obtain legal advice from one our experienced Sydney lawyers.
Equally, if you are the one paying maintenance and your financial or living circumstances change, you should seek legal advice on what this means for your obligations to pay maintenance to your former partner.
At Ivy Law Group we’re committed to sharing useful information regularly. We understand for some people the importance of getting some context around your legal issue before engaging legal help!
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