SPOUSAL MAINTENANCE

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Spousal Maintenance 

The end of a relationship can pose emotional, psychological, physical and financial challenges which are unique to each individual. Depending on how long the relationship was, the intertwining of two people’s lives can run deep and may take time to separate. The common saying attributed to marriage is that “two lives become one” and that ultimately makes it even more difficult when the relationship ends to revert back to the old way of life.

Speaking strictly in a financial sense, people who have lived as a couple do not plan their futures as though they are single. They do not make financial decisions as an individual or account for the loss of that other person’s effort and financial support. Whether you are a de facto couple or a partner to a marriage, you may be entitled to some spousal maintenance to see you through that initial transition period from couple to single. But how do you know?

Please note, you may have heard spousal maintenance be called alimony but in Australia, that is not the correct terminology.

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    What Is Spousal Maintenance? 

    Spouse maintenance is a periodic payment (weekly, fortnightly or monthly), which is designed to make up the difference in income you need to maintain your weekly living costs that you were accustomed to during the relationship. This is not an excuse to live a lavish and luxurious life but is rather a means of ensuring you can afford all your basic living costs and, in the event there are children to factor in, that you can continue to provide for all their usual costs as well. The types of costs this money may need to help cover, differs from person to person and is individualized to what your family’s particular needs are. For example, your family might have higher medical costs due to disability or ongoing illness and therefore your financial resources need to be able to cover this.

    Spousal maintenance is not designed to be a drawn-out payment that lasts indefinitely but rather, designed to assist until both parties can be fully financially independent. Often this might come about as a result of a finalized property settlement. It is worth noting, that spouse maintenance can be in excess of child support under certain circumstances depending on the situation.

    What Jurisdiction Does Spouse Maintenance Fall Under?

    Spouse maintenance is a family law matter and as such, it is dealt with by either the Family Court or the Federal Circuit Court. Often, the payment of spouse maintenance stems from legal proceedings because it is statistically rare for people to outright agree to the periodic payment of funds to their estranged spouse. This is primarily because once a separation has occurred, one party does not feel that they should be responsible for the other party’s financial needs. 

    The legislation on which spousal maintenance relies is the Family Law Act 1975. If you feel that you need to look to legislation, this is an indication that you should seek legal advice immediately. The interpretation of legislation is complicated and can vary depending on the reader. Don’t leave your financial future open to interpretation, seek legal advice to ensure your in the right hands.

    If you are going to seek legal advice, contact a law firm that specialises in family law and get advice from a family lawyer regarding a spousal maintenance order with your former partner or ex-partner. The provision of spousal maintenance relates to de facto couples as well as married couples. 

    In case you have never been involved in the litigation process before here is some terminology you may be unaware of. If you are the one who is filing the application, you will be called the applicant. If you are the one who is responding to the application, you will be classed as the respondent. These are important distinctions in case you are asked by the judge to speak. 

    What Is The Process of Filing A Spousal Maintenance Application?

    If you do need to seek legal intervention to receive spousal maintenance then you will file what is called a spousal maintenance application. The application will include an affidavit setting out the financial position you had when in the relationship and subsequently the financial position you now have as an individual. You will further include, what you consider to be, an adequate reason for why you need spousal maintenance. Both parties will then be required to file a financial statement setting out their costs per week in comparison to the amount they earn per week. For the party seeking the payment, it needs to be demonstrated that their financial circumstances are such that their income per week is less than their living expenses per week. Likewise, it would need to establish that the person who the payment is being sought from has the financial capacity or earning capacity to make up the difference (i.e. their income per week is substantially higher than their expenses per week). It is only once these two things are demonstrated that a court will consider someone to have eligibility to a financial entitlement. 

    The court will always reflect their determination by way of a court order which orders how much the person is to pay and how frequently. It is worth noting that just because spousal maintenance is ordered sometimes, does not mean that the amount sought will be ordered. It is often the case that an amount will be ordered but it will less than what was sought due to the financial capacity of the payer. However, any amount is better than nothing.

    Can You Settle The Matter Without Litigation?

    Before you reach a litigation stage, there is the option of engaging in a dispute resolution process to try and settle the matter. Dispute resolution is a form of mediation where both parties (and their lawyers if applicable) meet with an accredited dispute resolution practitioner to try and work out an agreement. This is a conciliatory process that allows both parties to speak openly and freely in a non-prejudicial environment.  

    Dispute resolution is a confidential process where nothing that is said can be repeated during the litigation process. The idea of this is to keep both people feeling safe and protected which in turn allows for a more open and free-flowing discussion. In the event an agreement is reached, it can still be formalized by way of consent orders which are provided to the court. 

    Are There Any Time Limits Involved?

    If you want to make a spousal maintenance application, there are time limits that apply. If you are suffering the breakdown of a marriage, then your time limit does not begin until such time as your divorce is final. From that date, you will have a 12 month period of time to make a claim for spousal maintenance. Please note, you need to be separated for a full 12 months before you can apply for a divorce order.

    If you are suffering the breakdown of a de facto relationship, then you have two years from the date of separation to make a claim for spouse maintenance. Usually, you will seek to make a claim for spouse maintenance quite quickly, because you will be struggling financially straight away from separation. 

    Is Superannuation Dealt With Differently?

    Superannuation is dealt with as part of the parties property settlement but is not specifically considered as an aspect of spousal maintenance. As you may already be aware, superannuation cannot be provided to your spouse as anything other than super (unless there is a rare exception) and therefore if a superannuation split is involved, it will be provided as super. This will be a once off lump sum payment unless the super is already being accessed due to retirement. If that is the case then the matter will be dealt with differently.

    The financial relationship between two people is something that runs deep, and something which will last for years to come. Severing the majority of that financial relationship is both emotional and expensive, however, the severity of those two things is somewhat dictated by the individuals themselves. The more amicable you can make the situation, the better it will be. At the end of the day, it took two people to create the relationship so it’s going to take two people to end it and untangle all the financial entitlements.

    Frequently Asked Questions.

    Our lawyers cover a multitude of areas, including more serious offences. Including but not limited to:

    Family Violence
    Family violence is among the most common cases we encounter, with both men and women subject to institutional abuse. While it doesn’t necessarily entail sexual abuse, in many cases, it does, and sexual assault is part of the Criminal Code. We handle such cases with confidentiality and cautiousness to ensure the best possible compensation outcomes.

    Children-related Issues
    The children’s court is frequently confronted with issues of child protection, children’s rights, custody arrangements as a result of divorce, parental responsibilities, and more.

    Because we understand how far the impacts of such situations can go in the memories of children, we work rapidly and efficiently to establish protective measures against children’s trauma and minimize time spent in a children’s court. You and your children are fully protected with us!

    Drugs
    We have a track record of achieving outstanding results when it comes to drug offence charges, ranging from demolishing the possibility of a criminal conviction, dropping charges through negotiations, securing “not guilty” verdicts in court trials, and more.

    Our drug offences include commercial drug charges, drug importation charges, drug possession charges, and cultivating prohibited plant charges. We also work with minor possessions of prohibited drug offences, providing you with legal representation throughout the process!

    Fraud

    Fraud is considered one of the most scheming criminal offences, and accordingly, it is punished severely by the court system’s penal code and criminal code. As specified by Australia’s penal code, the penalties can go as high as ten years of imprisonment.

    Accordingly, understanding the criminal law adequately and reaching out for professional legal advice to be your intermediary with the criminal justice system is a must. We specialize in forgery, identity crimes, tax fraud, Medicare fraud, and ID fraud.

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