It is not every case in which spousal maintenance will be payable but in those where it is, what length of time can you expect to receive that support?
A couple of early points about spousal maintenance:
- It is not based on sharing the other spouse’s income but rather on need – how much does the recipient spouse need to meet their reasonable outgoings?
- It automatically stops if the spouse receiving it remarries.
- It does not have to be set at the same rate for the whole time it is paid, it can step up or down on the happening of certain defined events.
- It can be linked to rise with the cost of living.
Once an order is in place
We just need to touch on the position where the period for which spousal support is to be paid has been agreed, and is included in a financial court order. Can that be changed?
The answer is yes. Any order for spousal support can be varied upwards or downwards and the period of payment can be reduced or extended (unless that right has specifically been removed in the court order). Sometimes an ongoing provision for spousal maintenance can be replaced by a one off capital payment or pension award.
So even having reached an agreement, it cannot be guaranteed that the support will be paid no matter what.
Expectations before an agreement has been reached
When starting to negotiate the length of a spousal maintenance order, there can be a number of factors that might influence this.
The length of the marriage and the ages of the parties at the time of the divorce could be significant. For example a non-working wife of a couple in their 50s or older might receive a maintenance order for the rest of her life with the expectation that it will be reviewed on the husband’s retirement, or alternatively, if as part of the overall settlement there is to be a pension share, the term might last up to the wife’s own retirement.
At the other end of the spectrum, a younger stay at home parent with small children may reasonably expect the spousal support to continue at some level until he or she has returned to full time work, which could be 10 or 15 years away.
Ability to Earn
It is not easy to persuade a judge in the current climate that a parent cannot work at all once children are of an age to be attending primary school, and there is a growing expectation that if children are attending secondary school that there can be no argument against looking for full time work. The concern over care of the children during the school holiday periods is often an argument dismissed by the court because of the availability of holiday childcare options.
If the parent seeking spousal support is already producing his or her own income, then it is likely that the term of any spousal support will be even shorter. A judge will look at whether there are steps that can be taken to improve the recipient spouse’s income, sometimes making assumptions that may be said to be quite optimistic. If for instance additional training or qualifications are required, the judge may order as part of the overall financial settlement that the paying spouse finances the costs of this and provides financial support while those steps to improve income are made.
A lower earning spouse who has not been married for long with no children may find that if spousal support is paid at all it is for a short period, for instance between 6 months to 2 years, simply to allow them a period of adjustment to their new circumstances.
There are circumstances whereby the spousal support term can be unlimited, for instance because the recipient spouse has ongoing physical or mental health issues or the couple are asset poor but income rich.
The conclusion has to be that there is no one formula or rule that can be applied. The discretion within the family law system allows a solution to be tailored to each couple. The point to work from is that spousal support is only put in place where the recipient spouse needs that income and establishing why that person needs the support will define the time for which it should be paid.
