The following factors are relevant to the calculation of spousal maintenance:
- the income, earning capacity, property and other financial resources of both spouses, both now and in the foreseeable future, including any increased earning capacity which the Court could reasonably expect the other person to try to acquire
- the needs of the children, now and in the foreseeable future (NB the CSA has jurisdiction over child support, and child support is addressed as a priority over spousal maintenance)
- the financial needs, obligations and responsibilities of both spouses, both now and in the foreseeable future
- the possibility of each being financially self-sufficient (a ‘clean break’)
- welfare and social security entitlements
- the standard of living before the breakdown of the marriage
- the ages of both spouses
- any physical or mental disabilities
Creating or contesting the case for spousal maintenance
Often the central challenge is to assess the spouse’s true income and determine “how much does he/she really earn?”
Although the solicitors / counsel will take the lead in arguing the case for spousal maintenance, those arguments will be based – or rebutted – by reference to reliable and accurate financial data on income and needs which we can prepare, e.g. :
|Advising on your disclosures||Challenging the other side|
Sources of income vary between individuals and might include one or more of the following sources:
We can tabulate your income in the most appropriate way for the purposes of maintenance.
We help identify and re-state the actual income of the spouse.We are familiar with the various techniques employed to portray a lower, artificial level of income and we can do much to ascertain the truth.Income can be disguised or misrepresented in a variety of ways but by carefully questioning and examining bank details, business accounts and other data we seek to gauge the spouse’s actual income
An erroneous or over-stated Needs budget might impact adversely on a maintenance claim.We pay close attention to the detail of your current and expected expenditure. We reference your Needs to actual spending patterns and create a robust spreadsheet model which truly reflects the current and anticipated future spend for you and for your children.
We scrutinise budgets for unrealistic estimates and, with careful examination of the spouse’s bank, credit card and other data can map their actual expenditure into revised budgets to present a truer picture.
We can produce clear, concise and expert reports on what we have found and our conclusions. These reports then get used by your solicitor and Counsel to persuade the other side, and the Court, and to assist the parties achieve a satisfactory settlement.
Maintenance pending suit
Maintenance pending suit is an interim position, where one spouse, generally suffering financial hardship, cannot wait for the finalisation of the divorce and needs an interim order for funds.
The work we do is summarised in the paragraphs above.
Making the case for reducing or increasing maintenance
In the years following divorce one or other party may wish to apply to the Court for the original maintenance arrangements to be modified. For example, both parties may now be working, or the income of one party may have risen or dropped substantially. A change of circumstances may mean that one party is now suffering hardship under the existing periodical payments for maintenance.
In that case, an applicant may wish to recommence the Ancillary Relief process and accordingly begin the long legal journey which commences with completing and filing Form E.
Because this case hinges entirely on finance – it will be all about the parties’ income and needs – prior to engaging a solicitor it may be much more cost-effective to explore the scenario with a Divorce Accountant. We can focus on the incomes and Needs and quickly model the financial situation under various assumptions.
This should allow you to form a reasonable expectation as to what might be achievable and where the battle-lines will be drawn. Usefully, you can get to this point prior to engaging a legal team, which avoids the risk of wasting time and costs and, assuming you then proceed, gives them a much better starting point.