Can I obtain maintenance to get me through the divorce?

Can I obtain maintenance to get me through the divorce?

Fiona Griffin – Senior Consultant Solicitor – Divorce/ Finance Specialist

When a couple divorce financial arrangements are generally one of the last things to be finalised before the divorce goes through. Indeed, any financial settlement, whether agreed or ordered by the court, is not final until the divorce itself is finalised by the decree absolute.

This means that it can be many months between the starting of the divorce and the implementation of the financial settlement.

But what if one party needs maintenance from the other in order to meet their financial needs? They can’t afford to wait for months before a maintenance order takes effect. Can they get maintenance to get them through the divorce?

 

Maintenance pending suit

The answer is: yes they can. It’s called ‘maintenance pending suit’, i.e. maintenance that lasts while the divorce suit (or case) is continuing. The term (or duration) of a maintenance pending suit order can begin on the date that the divorce petition was presented to the court, and can last until the divorce is finalised by the decree absolute.

The important thing to understand about maintenance pending suit is that it is not the same as a long-term spousal maintenance order, which could last for many years after the divorce. It is intended to be temporary, and to meet the urgent financial needs of a spouse going through divorce, where they have recently lost the financial support of the other spouse.

Because of this, the rules for making a maintenance pending suit order are not the same as those for making a long-term maintenance order. The court must make a quick decision – it does not have the time to fully investigate the means and needs of the parties, in the way that it would before making a long-term order.

In fact, the only guidance that parliament gave the courts when giving them the power to make maintenance pending suit orders is that the order should be ‘reasonable’, which has been said to amount to the same thing as being ‘fair’.

That is not particularly helpful, but there is other guidance elsewhere, particularly from previously decided cases.

 

How the court decides divorce maintenance couple

What does the other guidance say?

Well, first of all it makes clear that when a maintenance pending suit application is made the parties have a duty to make a ‘full and frank’ disclosure of their means. Just because there is not time to look at things in detail does not mean that a party does not have to give the court an accurate picture of their financial circumstances.

In particular, if the party who is being asked to pay the maintenance (the ‘respondent’) does not comply with this duty then the court will make assumptions about their ability to pay, which may result in their being ordered to pay more than would otherwise be the case.

And the party who is applying for the maintenance (the ‘applicant’) should explain why the ord

er is necessary, and provide the court with a budget, setting out their income needs. If the court considers that items on the budget are not necessary expenses, or that the amounts are exaggerated, then it can exclude those items from the budget. Note that the standard of living enjoyed by the parties during the marriage is relevant – the needs of an applicant in one case will not necessarily be the same as those of an applicant in another case.

The court will then decide how much maintenance (if any) the respondent should pay. The decision will be broadly based upon the immediate financial needs of the applicant, and the respondent’s income and financial resources.

Obviously, when the court deals with the final financial settlement it may find that the amount of maintenance pending suit that it previously ordered was too much, or too little. In such a case the court can make an appropriate adjustment to the final award.

 

Further advice

divorce couple arguing

If you believe you may be entitled to maintenance pending suit, or if your spouse has applied for maintenance pending suit from you, then you should seek expert legal advice, as soon as possible.

We can provide you with the advice you need. To find out more, and to get started with one of our specialist lawyers, click here.

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