Maintenance and Clean Break on Divorce
- Who’s entitled to Spousal Maintenance? How’s it calculated?
- What’s a Clean Break, and is it the answer?
- And what about Nominal, Capitalised, or Secured Maintenance?
- And what on earth is a Duxbury Calculation?
Here’s a quick answer to all these questions and more, and I hope you’ll find it helpful. If anything’s not clear, please leave a comment, or get in touch. And right at the end I mention some of the topics I’ll be covering in my next blog about Child Maintenance.
Can I Claim Maintenance (aka Periodical Payments)?
It depends on your financial circumstances. The Court used to make lifelong Maintenance orders as a matter of course. But now a “Clean Break” is much more likely.
What’s a “Clean Break”?
It’s when the Matrimonial assets are shared out and you call it a day, you have no continuing right to Maintenance. But people do still sometimes avoid a Clean Break and get a Maintenance order, so read on.
What are the Options for Maintenance?
Maintenance can be:
- Open ended
- For a fixed period of time
- Capitalised (see below)
- Secured (see below)
- Dismissed (see below)
- Not dismissed but not in payment – a “Nominal Periodical Payments” order (see below)
How is Maintenance Worked Out?
It’s usually a question of need. What does the lesser earner, usually the parent with whom the children live, need in order to pay all the outgoings?
It’s only in exceptional cases that entitlement goes beyond needs, and this is where there’s an excess of income. There’s no set formula but the Courts say the concepts of “sharing” and “compensation” should be applied.
How Do “Sharing” and “Compensation” Differ from “Needs”
“Sharing” is, briefly, the idea of sharing in the “fruits of the marriage”. So it’s an attempt at fairness rather than just covering needs. “Compensation” refers to big money divorces where Maintenance is likely to go far beyond needs. These complex areas are discussed in the cases of Miller and McFarlane.
If there’s high income in your divorce, you’d be wise to seek advice from an expert Family Solicitor to make sure you don’t miss out. Most offer initial free advice. We certainly do.
What is Capitalised Maintenance?
The payer pays a lump sum upfront representing a certain amount of Maintenance over a certain period of time. Family lawyers use a Duxbury Calculation to work out the appropriate figure. This can result in a “Clean Break” (see above).
What’s a Duxbury Calculation?
Tables to work out a lump sum which represents the appropriate level and duration of Maintenance. They are contained in At A Glance, Essential Tables for Financial Remedies published by the Family Law Bar Association. The 2018-2019 edition comes out in April and can be preordered here for £70.
What is Secured Maintenance?
Are you worried your Maintenance won’t be paid? If so you can either agree, or the Court can make, a Secured Maintenance order. But this is only appropriate if the payer has sufficient assets to cover the payments.
What Happens When Entitlement to Maintenance is Dismissed?
You lose your entitlement to Maintenance. If you have the slightest doubt, seek advice from a Family Law solicitor.
What are Nominal Periodical Payments?
It’s when you’re not receiving Maintenance, but your entitlement is not dismissed. You might be able to go back for a second bite of the cherry if your circumstances change. These Maintenance orders are often worded as “five pence a year”.
Why are Nominal Periodical Payment Orders Important?
They protect the lesser earner, typically the parent who has the children living with them. So for example if the parent suffers a catastrophic injury and is unable to work, the order could be a safety net.
Can Maintenance Be Agreed?
Yes, of course. If you need a little guidance, “Pay As You Go” divorce costs can be helpful. Otherwise you can try negotiation, collaborative law, or mediation. The last resort is an application to the Court which of course is expensive and stressful, but sometimes necessary.
Is a Court Order Necessary?
Even if there’s full agreement it’s wise to have a Consent Order. This prevents misunderstandings. A good Family Solicitor can draw up a Consent Order for a fixed fee.
Can Maintenance be Varied?
An application to the Court can be made by either of you if there’s been a change in circumstances. This could be for example illness or redundancy. Or perhaps one of you has landed a well paid job, or there’s been an inheritance.
What Happens If I Remarry?
Your Spousal Maintenance will end.
Next Week’s Blog – “Maintenance for Children”
Following on from this blog about “Maintenance and Clean Break on Divorce” I will be posting a blog to cover the following questions:
- Can I get Maintenance for the Children?
- How much will it be?
- Is there Maintenance for Children over 16 but not in full time education?
- What about school fees?
- Is it different if the absent parent is a very high earner?
Maintenance and Clean Break on Divorce
Contact Joanne Houston on 01962 217640 for free advice on Maintenance and Clean Break on divorce. In this 20 minute session we will review your situation and how you can achieve your objectives.
See my blog about how to get the best financial settlement on divorce.
Did you know there are different rules for Short Marriages?
JUST FAMILY LAW are specialist divorce and family law solicitors offering personalised legal solutions. We offer collaborative law which is especially relevant in providing solutions tailored to your family’s needs. This includes same sex couples and their families. Visit our website just-family-law.com The topics covered in this blog post are complex and are provided for general guidance only. Therefore if any of the circumstances mentioned in this blog have application to you, seek expert legal advice.
image Happy Family by Joy Coffman on Wikimedia