One of the most crucial aspects of a divorce that you will want to discuss with your divorce lawyer is that of spousal maintenance. That stands whether it is you who is going to be in receipt of spousal maintenance, or it is you who is going to be paying it.
Often clients confuse the term alimony with spousal maintenance, no doubt because alimony is the term used in so many movies and TV shows when divorce is part of the storyline.
The fact is, alimony is a legal term used in the USA, and while it may have the same meaning in the sense that one person has to pay money to their divorced spouse, the term we use in Australia is spousal maintenance.
In terms of who can apply for spousal maintenance, this can be either spouse if the couple is married, or one of the partners in a de facto relationship.
A de facto relationship is regarded in law as a couple who have lived together as partners for a period of time, and although not legally married, many of the rights each individual has, are the same as though they were married.
Spousal maintenance can be applied for on the day that two partners or spouses separate, and therefore a divorce does not have to be finalised in order for one party to receive it, and the other party to be liable to pay it.
If you decide to delay your application you should be aware that the time limit is up to 12 months from the date that your divorce is finalised, or two years from the date of separation, if you are in a de facto relationship.
There are different reasons why someone might be due to receive spousal maintenance from their ex-spouse or partner. Generally, it applies when one of the partners needs financial support, and the circumstances of the other partner mean that they are in a position to provide that support.
As for assessing exactly how much is due to be paid, this is done by the Family Court using what is called a ‘threshold test’. The principles behind this test relate to the needs of one of the individuals versus the ability to pay of the other individual. Several factors are considered, which include:
- Physical/mental ability to secure employment
- Who has custody of any children
- Level of a reasonable standard of living, given the circumstances
- Income of each party
- Resources/assets available to each party
- Financial commitments and outgoings
Having considered all the factors that apply, the court will make its judgement as to the level of spousal maintenance to be paid, and if applicable, the time scale in terms of how long it is payable for. Both the recipient and the person liable to pay can appeal if they are unhappy with the decision.
Spousal maintenance can be paid in several ways which include a lump sum payable upon the settlement and division of any property that the couple jointly owned.
Thereafter spousal maintenance payments are normally paid monthly, and this can be done either as a fixed amount with no specific use stipulated or as an amount calculated to cover outgoings and expenses.
In terms of how long spousal maintenance needs to be paid, this can be an indefinite period, based on the financial circumstances that each of the parties is in, or the court may set a fixed time period or a date when it will end.