Historically Courts have been fond of making what are known as ‘joint lives’ Spousal Maintenance Orders when couples divorce. A joint lives Order is where the Court orders spousal maintenance to be paid until the death of either spouse, or until the receiving spouse remarries.
Spouses and ex-spouses who are required to make payments under these orders often feel aggrieved, especially where the receiving spouse treats it as a meal ticket for life. Problems inevitably arise further down the line as people’s financial circumstances change.
The question that frequently crops up is ‘can a Spousal Maintenance Order be varied if the paying spouse’s income has reduced?’. And if the payer’s financial circumstances really take a turn for the worse, can they apply to have the maintenance terminated altogether?
The simple answer to both questions is ‘Yes’. A Maintenance Order for life can be varied and, in appropriate circumstances, can be terminated altogether.
This can be a double edged sword however, as a variation could result in an increase in maintenance! To paraphrase the stock market investment warning, maintenance payments can go up as well as down.
Maintenance Orders are sometimes limited to a specified period, rather than being made on a joint lives basis. These too can be varied, but it is usually more difficult to extend them beyond the specified period.
How do I go about applying to reduce or terminate a Spousal Maintenance Order?
Although parties can represent themselves, many people choose to retain a specialist solicitor to provide representation and maximise their chances of getting a reduction or termination. We regularly assist people in applying to vary or terminate their spousal maintenance payments, especially after key life events occur such as retirement or a change in their career path. Partner Paul Jordan specialises in dealing with the financial aspects of divorce and is highly experienced in this field.
When we are asked about reducing a client’s spousal maintenance payments we start by carrying out a thorough review of both the client’s and the receiving party’s finances. The focus is usually on the receiving party’s needs and the paying party’s ability to pay.
The paying party’s capital position will not usually be taken into account if capital claims were dismissed in the original Order, though it might be appropriate to consider whether a maintenance claim can be capitalised in a ‘clean break’ settlement.
If a receiving party has acquired capital, through inheritance for instance, then this can be factored in when assessing their income needs.
Once we have assessed the financial position, and assuming this supports a case for a reduction or termination of the Spousal Maintenance Order, our next step is usually be to attempt to reach an agreement by negotiation. It is often described as an “out of Court “ settlement, though any agreed variation or termination must be approved by the Court as otherwise the paying party will be in breach of the original Court Order.
Contested court proceedings are expensive and one or other of the parties will ultimately have to foot the bill. It is usually the loser who pays the costs of a variation or termination application, so if the paying spouse has a strong case then the receiving party may well agree to the variation by consent. They might not want to do so, but when they appreciate they are likely to lose and be ordered to pay all the costs there is a reasonable chance that good sense will prevail. We therefore ensure that the strongest possible case is presented, fully supported by all the evidence available so as to maximise the prospects of a downward variation or termination agreement being reached. This is then filed with the Court on a joint consent basis for approval.
Mediation can also assist in achieving a settlement. This involves a trained, independent family mediator who will help the parties discuss options. Both parties should take independent legal advice before reaching a final agreement as a family mediator’s role is not to give legal advice.
On those occasions when an amicable resolution can’t be negotiated then the next step will usually be to issue a court application. This involves the paying party putting forward their case on paper and the receiving party then responding. Both parties are required to be open about their finances and to disclose any documents that are likely to be relevant to their financial position, such as bank statements, business accounts and pay slips.
How we can help you to reduce or terminate a Spousal Maintenance Order
Because this process takes time, it’s important to start things moving as soon as you know that your financial circumstances are likely to change.
If you would like to know whether you have a good case to reduce or terminate a Spousal Maintenance Order then you can call divorce solicitor Paul Jordan for a free initial assessment. Paul specialises in the financial aspects of divorce and separation. He is always happy to chat through the merits of a case on an informal basis and will give you an indication of what the process is likely to cost.
Paul can assist with applications to reduce maintenance throughout Devon and Somerset.
Call Paul on 0333 888 0404 or email [email protected]