Spousal Maintenance – Australian Law

When your marriage breaks up your finances may be in a state of disarray, this is compounded by the even more chaotic state of your emotions.  People are disadvantaged by not knowing their rights, and are often not in a position to afford the right solicitor that gives you the right advice pro-actively. 

Don’t take it for granted that your solicitor is going to intuitively volunteer all the information you need to know to get your best possible outcome.  Often you have to ask the right questions and be very specific in order to get the answers you need.  The problem is that you need to be quite expert to know what the right questions are!

Spousal support is an entitlement that a lot of people miss out on.  Take the following scenario for example:

• Your marriage has broken up, your partner has decided that they are moving on and are substantially reducing the role they are playing in their children’s lives.  They leave taking with them the sole income for your home.  You are not currently working.  You are struggling emotionally from the impact of your marriage breaking down and have had to seek help from your GP, you may be having trouble sleeping, concentrating and dealing with basic day to day tasks that you used to take in your stride. How are you going to buy groceries, pay your bills keep your kids in their classes, buy clothes etc?

 It’s not reasonable to expect that you should have to.  When you were married you were contributing equally to your partner, they went out to earn the salary and you stayed at home to raising the family and keeping the home going to enable them to earn it, it was an equal partnership.  In that respect nothing has changed you are still running the household and raising their kids.  They may have elected to leave your marriage, that is their right, but there is no reason for you to take on more than your fair share of the responsibilities they are walking out on.  The law is quite clear on this, if you are capable of supporting yourself you are expected to, but this simply isn’t always the case.  You may not choose to go down the path of claiming spousal support, this may in retrospect be something you regret i.e.  Martyr Syndrome when you are looking at a stack of debt some time later you may wonder why you felt more responsible for your ex partners welfare than you did for your own and your kids.  Don’t assume you will be thanked. 

If you are  being pressured by your ex about money this may be a sign of the struggle you have ahead and all the more reason to ensure you are clear about getting your entitlements now.  Don’t struggle financially because you feel guilty about claiming your rights. Your rights are your rights, not privileges, not favours not charity.

Another thing you may need to check is the possible impact that spousal support may have on other government entitlements.  You need to weigh up all your options carefully.  Spend a little time asking questions now to avoid a lot of time regretting you didn’t later.

Spreadsheets should become your friend now.  If you are not adept at spread sheeting and researching, believe me you have at least one friend or acquaintance that thrives on it and will throw themself in to it with gusto.

Spousal support may not be the answer to all your problems, and it will  likely be less than you hope for, but it’s something to be aware of and something that may be worth pursuing so do your homework.

The law tries to be fair to both parties.  It is not the place to try to pursue emotional vendettas, it is simply the avenue for claiming your rights if they are not freely offered by the other party involved.

 

I did a google search and found the following information at this link:

http://www.armstronglegal.com.au/web/page/spousal_maintenance

Armstrong Legal are Australian Family Lawyers located in Sydney, specialising in the area of Spousal Maintenance.

Spousal maintenance is when one person provides ongoing financial support for their former husband or wife.

Under the Family Law Act, both spouses have a duty to support and maintain each other, even after you have separated or divorced. Essentially, the extent of the support depends on the following:

One spouse (the applicant) is unable to adequately meet his or her own reasonable needs; and

The other spouse (the respondent) has the capacity to pay.

When deciding any financial disputes after a divorce, the Court bases its decisions on the general principles set out in Sections 79(4) and 75(2) of the Family Law Act 1975. In summary, the judicial officer will try to decide on what is most fair and equitable, based on the following information (for both spouses):

Your income, property, financial resources and debts

Your age and health (which determines future requirements)

Your ability to earn, and whether this has been affected by the marriage

What is considered to be a suitable standard of living

Whether the children live with you or your former spouse.

Spousal maintenance is not automatic, and often is considered as part of an overall settlement of financial matters.

It is necessary that both parties attempt to reach an agreement outside of court, before filing an application for spousal maintenance orders. When spousal maintenance applications are filed with either the Family Court or the Federal Magistrates Court, both parties are ordered to undergo “pre-action procedures” including participation in a dispute resolution.

In rare cases, such as situations involving urgency, child abuse, family violence or fraud, the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

Applications for spousal maintenance must be made within 12 months of your divorce becoming final. Later applications require special permission from the court, but this is not always granted.

via Spousal Maintenance.

What is fair

Hopefully you are in a position to make an amicable and fair settlement that you mutually agree upon.  I advise that you are both fully aware of your rights and entitlements before you reach an agreement, and I would also advise you  take time to think about the actual consequences of your agreement.

Whether things are amicable or not, it’s important to note that life is complicated and although initially you may think you can come up with a quick number to satisfy both parties, with some reflection and recalculation it may transpire that one of you is not being taken care of quite as fairly as it initally seemed.

Where no children are involved these days it is generally more straight forward as it is rare for a woman to give up her career to ‘look after’ her husband, although I guess there are still some cultures where this would be a standard practice.  In principal one would hope that an agreement could be reached without having to call in the solicitors. 

Fair is an interesting term isn’t it, what is fair? it’s so subjective.  If you cannot reach an agreement which you both agree is fair, than that term becomes redundant.  You then need to think solely in terms of legal rights.  Legal rights are often not fair at all.  There is a myth that women are very well looked after in Divorce settlements, but in my experience the only time that women are well looked after is if their Ex partner enables this to happen.  This often does occur, some men are very much more than fair when it comes to settlement and I congratulate them for their generosity and hope that they were not disadvantaged themselves by it.

To say that the law gives preferential treatment to women to the detriment of men is somewhat amusing to me.  Seriously does anyone actually believe that the most established boys club that there is disadvantages men to be nice to women? does that seem remotely feasable to anyone?  In my opinion the law tries to treat people fairly, there are precedents to refer to and rulings a plenty, but at no point did anyone say women will be given a bonus because they are women.  Mothers are often allocated a greater % in their settlement if they are the primary carer, but if you think about what mothers have to do and provide as primary carer , and take in to account  that effectively their settlement is shared with their children – you will soon conclude that they were not quite as generously provided for as you initially thought.

In some cases the Ex partner has his own view on what is fair.  He has decided that he is moving on, he has detached emotionally and he is focused on his future and what he needs to build the future he desires.  Sometimes he will already have a new partner by his side, she is also focused on her future and her desires.  Where does this leave you? In short what they want should not interest  you.  Focus on your rights and understand why they are your rights.

Know that all solicitors/lawyers were not created equal.  Ensure that you get a reputable family law solicitor if you can.  If you need to use legal aid so be it.  In either case, be prepared to do some research yourself.  You only have one chance to make this settlement, you dont want to find out you overlooked something critical that will have a long lasting impact on your quality of life, just because you didn’t do your homework. There are a couple of websites which will offer a little taste of legal advice but you won’t get anything terribly signficant this way.  Most solicitors will offer you the first 30 minutes free.

Solicitors are very expensive.  Make sure that every minute you spend with them, every email or phone conversation you have with them counts.  Do not waste time on waffle – either from you or from them.  Be prepared.  Think about what you want to get out of every meeting, write down questions and ensure you take notes on the answers.

Be realistic. You may not like what your best outcome is – but understand that the law doesn’t really care, it will simply deliver according to it’s clearly defined rules.  Understanding the rules is important, all your arguements will be based around them.

Sometimes bullying and manipulation become a factor.  These are very very hard to withstand.  You may have already been battered emotionally by the breakdown of your relationship, you may be vulnerable and overstretched. Your thinking may be clouded by emotions.   Some people are not above taking advantage of this.  They use all kinds of manipulative tricks, even implying that by agreeing to their terms you will be proving to them that you love them and they may therefore reconsider leaving you.. please don’t fall for that!  If you experience bullying or intimidation of any kind – take steps to stop it happening.  Here in Victoria, you can find out when the magistrate is sitting in your local court, go along and request an intervention order.  Here is a link explaining the process http://www.legalaid.vic.gov.au/1831.htm.

So some food for thought if you are the primary carer.  First of all do your budget and do it in fine detail – there is a link to a budget calculator on my blog which will help.  Try to include everything you can possibly think of all your annual as well as weekly and montly outgoings.   Check your weekly total for outgoings  – I’m pretty sure it will be higher than you thought.

What can you cut ?  Have you factored in money for saving for an emergency, on a tight budget a broken down fridge or washing machine can be an emergency.  What about health costs, school costs, will you ever be able to afford a holiday again?

Now think about your life.  You may not feel as though you have much of a life right now, but you are entitled to have one.  If you want to go out in the evening – can you?   I dont have family here and one can only ask so many favours before the time spent paying them back becomes to exhausting. So effectively you may feel as though under house arrest a lot of the time, unless you can afford babysitters.  I know initially I resisted the idea of babysitters because I felt the kids had dealt with enough upheaval without me going out and leaving them, but 2 years and very minimal social life later I really do recomend that you think a little more about yourself at this point.  Do you have pets?  When I separated I was left with a very elderly boxer dog, the boxer dog my ex wanted in fact.  A year later she was diagnosed with cancer and about $3,000 later she was euthanased.  I loved her and dont begruge her a penny, I was lucky I had those penny’s at the time – I have fewer penny’s now! My point is that these unexpected items come up, when you are living with a decent income you take them in your stride.  When you are a single parent, with more limited earning potential – incidents like that can submerge you.

Realistically, as a single parent you can have a wonderful and fulfilled life, but it is so much tougher in practical and financial terms then being the fortnightly parent (as an example).  You may be able to maintain a high flying career if you have the right support system and good for you if you are.  But it will come at a cost to you – it will exhaust you, and the guilt of being a working parent is in my experience very very heightened when you know your kids are dealing with the breakdown of their family.  You may decide to make career compromises to provide greater balance in your life and make yourself more available to your kids – this too comes at a cost and will also exhaust you, you will still feel guilty but perhaps to a lesser degree and now the purse strings will be tighter again.  If you are a stay at home mum – you are exhausted and the purse strings are asfixiating!  Centrlink provides help, as does the CSA and there are other small entitlements such as the Education Maintenance Allowance in Victoria, but the message is – make you you get the best settlement you possibly can because your future and your kids future depend on it.

It is not a time to be nice, it is not a time to pull some martyred I can do it all on my own routine, it is time to get real and get your entitlements.

If you can – avoid being emotional.  The best outcome will be achieved by rational thought.  Make sure your solicitor understands that only the best outcome is good enough.  Do not go after anything unrealistic.  Weigh up the outcome, do not spend $10k on solicitors fighting for $5 a week which over the life of the settlement will only net you $5k.  Be rational.

Above all else do not be a pushover.  These are your rights because they were deemed to be by the courts, women have fought very very hard to achieve rights which allow them to survive and raise their kids in the wake of a divorce – do not throw them away.

I suggest as part of your agreement you ask that your partner pay 50% of your kids medical, education and extra curricular activity costs – these are the costs that can cripple your budget and your child support will not come close to covering it. 

I just want to add a footnote – I’ve used the term women loosley here – the primary carer is sometimes the man.  There are instances of care being shared 50/50.  This will all be factored in to the agreement by the court.

Take your time to get the best possible outcome.