By Vanessa Lloyd Platt
Lloyd Platt & Co
Clients, when they seek advice in divorce proceedings, often misunderstand the whole basis of maintenance; to whom it is payable and for how long.
In the first instance, the parties will have to go through a process known as “financial disclosure”. This is normally provided on a document known as a “Form E”. This is a complex document, and if you have difficulties in completing it, a lawyer from this firm can assist you. Both parties must fill in their own Form E and exhibit financial documents in support, as requested by the form.
The basic rules in relation to maintenance payments are set out in statute. There are two possibilities of maintenance payments. The first is the possibility that you might have to pay your spouse maintenance or will receive it, the second is that you will have to, if you are considered to be the absent parent, pay maintenance payments to your child or children, or to be the recipient on their behalf.
The basic rules are that if your spouse is earning considerably more than you are, they will have to pay maintenance to you for such a time as you can become self-sufficient. In a short marriage, or sometimes in medium marriages if both parties can have an earning capacity, payment will be for a short period. If there are no children, the Court will try to put the parties back into the position they were before the marriage and are unlikely to award any maintenance payments at all.
If the marriage lasted between five to ten years, then there will most likely be what is known as “term maintenance” i.e. for a set period of time, perhaps for spousal maintenance until the children start secondary education, and for child maintenance until the children are of the age 16 to 18. Sometimes the maintenance payments for children will be extended until they cease university education. Consideration will have to be given to tuition fees, accommodation, and general maintenance.
If it has been a long marriage, then occasionally the Court will award maintenance until retirement of the other party or death. This is known as life term. The longer the marriage, the longer payments will continue unless the other party has an earning capacity, and will be able to achieve what is known as a “clean break” i.e. independence.
It is extremely important that at the earliest opportunity when you instruct a solicitor that you give full details of your income, and that of your partner, so that it can be established clearly whether:
- a) You have a liability to pay spousal maintenance and for how long this should continue or have a need to receive the same.
- b) Whether you have equal shared care of your children in which case you would not be considered to be the absent parent and would not have to pay child maintenance.
- c) What level of child maintenance you should pay or receive. This formula can be found in the Child Maintenance Service area of the gov.uk website, which calculates the child maintenance payments.
- d) That it has been a long marriage.
- e) Whether there is sufficient capital available to capitalise the maintenance or pension payments in a one-off payment of capital or by giving more of the house or houses to capitalise.
So often parties make the mistakes in dealing with divorces themselves; in whether there should be any maintenance payments, whether they should be cut off and, often in the case of women, will bargain off their maintenance in order to keep the majority of the home. Do not be tempted to do this until you have received proper legal advice.
At Lloyd Platt & Co we specialise in financial settlements, ascertaining whether the maintenance is or is not payable and the length for which it should continue. Do not be tempted to go it alone and make a fundamental mistake which could affect you for the foreseeable future.
If you want to discuss any aspect of divorce and separation, please fill in our form below, call us on 0208 343 2998 or click to contact our divorce lawyers in London.