Whilst there are many pressing issues affecting all of us personally and professionally at this time, one of the worries for many is the affordability of outgoings when our incomes might be being scaled back.
This may be the usual rent, mortgage payments and groceries or new outgoings prompted by the crisis whether it be Netflix, Amazon, subscriptions for Zoom or other distractions for children.
What will happen to my spousal maintenance payments?
This is a question we have been asked over the past few weeks and are likely to be asked over the coming weeks.
Many court orders dating back several years will have provided for spousal maintenance based on projected incomes. The thought when the Order was made, even as recently as orders made earlier this year, would have been that, except for an extraordinary event, they would continue. We are however now experiencing an extraordinary event. For many, the impact of coronavirus and the current shutdown has been a reduction or complete stop to their income.
Payers of spousal maintenance may no longer be able to afford the periodic payments. Recipients of spousal maintenance may no longer be able to make ends meet with their usual non- maintenance income either reduced or extinguished
The primary concern of any court dealing with a variation application, whether under normal circumstances or these new normal circumstances, will be to ensure that the needs of both spouses and any children are met.
In normal circumstances a Court would most likely reduce or extinguish a spousal maintenance obligation in the event that the payer’s income has reduced or ceased. The court might consider whether the payer has any capital resources or alternative income with which to continue payments as part of the general circumstances of the application.
If the recipient of spousal maintenance no longer receives an income from employment or other non-maintenance sources, the court may consider an uplift to the ongoing spousal maintenance so as to ensure the needs of the spouse and any children are met. The affordability of that uplift to the paying spouse will be considered.
If you are affected by the above then you need to be alert to the potential to vary the spousal maintenance order.
What options are available?
Former spouses can seek to negotiate a short-term solution. As well as having the power to vary maintenance orders either up or down, the Court can temporarily suspend payments.
However, as the Family Courts resources are presently very strained, the reasoning for a variation application may be out of date by the time a Court comes to consider it. Alternatives to the Court process may need to be considered and specialist family lawyers can assist with negotiations to find, if necessary, a creative short-term solution.
We would recommend taking advice from our specialist Family Lawyers on what could be achieved in sensible negotiated discussions or Court based options. Contact us to speak with a family law specialist today.
T: 029 2034 2233
Written by: David James