Spousal maintenance query - ex’s salary

[Nearlyalldone]

Hi -

Just wanting to check your thoughts on something. Divorce process is likely to start in the next few months. My ex is a higher-rate tax payer who earns between £65,000-£70,000 a year plus receives bonuses and has company shares. I’m not in the higher-rate tax band and earn at least £20,000 less per year than him (with no bonuses or company shares etc).

In this case, would spousal maintenance be considered? I don’t actually want to receive the spousal maintenance from him , I’m just wondering if it could be used to offset against the equity in the matrimonial home which we own jointly (where I live with the kids - he’s moved out). Reducing his share of the equity will help me to buy him out.

For context, if relevant, we have 2 children under 10. CMS not officially set up but the ex pays me a similar amount to what the CMS payment would be each month.

Thanks!

@BetterFuture1985

“Even then it's unlikely”

It is, as I said, a possibility depending on circumstances.

@Nearlyalldone I’d suggest you ask in the legal board, we’re mostly a decent lot and you’ll get real expertise rather than narrow personal experience.

Instead of sm, look at his pension. Could be worth more than the equity in the house

Lot, wtf, seriously? 😂

This is correct but it upsets folks who will try to Pretend it’s not.

Thanks to everyone for their thoughts!

For those who have responded that it might be possible, for more detail, I have a “lives with” child arrangement order. Kids are with me approx two-thirds if the time. They go to my ex EOW from Fri-Sun (plus one mid-week night for dinner - not overnight) and spend half the school hols with him.

To those who think I’m being ‘greedy’, I simply asked the question on here to get advice. If you don't think it’s possible, that’s fine, but there’s no need to attack me. I was simply asking a question.

Ultimately, I want a ‘clean break’’ order. I just wanted to check if I could offset a potential spousal maintenance order against the equity in the matrimonial home. This would make it more financially ‘comfortable’ for me to buy my ex out.

Thanks

This is not correct. It would have been a lot easier for me to have persuaded my ex-wife to drop her spousal maintenance claim earlier if it was because she never contributed directly to my career in any meaningful way. Section 25 of the Matrimonial Causes Act 1973 on which decisions about spousal maintenance are based say nothing about contributing to a career.

The law actually treats contributions now and in the future for the welfare of the family including any contribution by looking after the home or caring for the family.

To be a potential candidate for spousal maintenance, you only need to prove there is a gap between your income and your needs. To get spousal maintenance, you need to prove your ex-spouse has the ability to pay to meet those needs. That's it. There's no other hoops or hurdles. If there was, vulnerable people who needed spousal maintenance who had ex-spouses with the ability to pay could be left in severe financial difficulty.

@MrsBertBibby is a family solicitor and I think she will be able to set things straight.

However, what I will add is that it's probably less likely that a spousal maintenance claim would be successful today than 10 or 20 years ago. That is not because of some convoluted series of new hurdles required to be successful in a claim but simply because the way welfare works now it is rarer that spousal maintenance will make much difference. Allow me to demonstrate.

My wife has four main sources of income. Her salary, which is £1,100 a month. She has to earn this since Wright vs Wright in 2015, people who insist on remaining a SAHP don't have a leg to stand on. Not that that was important to us, she wanted to work anyway. Her universal credit, which is £565 a month. Child maintenance which is £660 a month. And finally child benefit which is £220. In total, that's £2,545. Next year, her salary is due to rise to £1,665 because of the job she has trained for and this will drop her UC to £260 which means her new income will be £2,805. She also has potential to increase her earnings a lot more when youngest DC is 11 in 5 years time.

In contrast, my salary provides a net of £4,900 (between £80-90k gross). £600 is an essential cost (the commute) and I also pay her the child maintenance of £660 so my income drops to £3,640 which is about £800 more than her. However, I also took on all the outstanding debt which will cost £350 a month for the next three years. So the difference is only £550 and I have much higher mortgage costs because of the uneven asset split so after that we're about even.

In the past before universal credit - so not that long ago - I might have been ordered to pay £275 spousal maintenance to equalise our incomes, even though it might have been a little unfair as my essential costs were higher. However, if I paid her £275 now she would be no better off. Her £565 UC would just drop to £290. Also, in 2018 Waggott vs Waggott made clear the sharing principle did not apply to future earnings. Spousal maintenance is paid on the basis of need - generously interpreted. From next year onwards such a payment would only make her £30 better off and when she fulfils her true earning potential in 5 years time she'll earn too much to have a reasonable claim (and SM just doesn't tent to last that long these days).

Also, the asset split in my case was so uneven (75/25) that even when the youngest is 18 she'll still be better off than me. That was also considered in negotiation.

This is why SM is rare and becoming rarer. You need to be earning a hell of a lot to be able to pay meaningful amounts of SM that aren't just lost against UC pound for pound. More often than not even if there is a SM claim it is small and can be capitalised for a four - or worst case five - figure sum.

Unless you are disabled it is very unlikely you would get spousal maintenance unless you have up your career to look after the kids and to enable his career. You may well get awarded a higher than 50:50 percent of equity in house if children are going to remain living in house. If your stbx is going to have DC 50 percent of the time this is less likely. If you have children but stbx has every other weekend and one evening in the opposite week you most likely will get higher percentage. You will most likely be able to pension share, which you could perhaps negotiate a higher percentage of equity in house in return for allowing him to keep his higher pension, but only do this after having an actuarial review which will tell you how much you would lose out on over time. I was awarded 64 percent equity in house and pension sharing order. This meant I gained approximately one third of his pension to invest withy own. I was married for 21 years but still had an 8 year old and a 16 year old. Our dd was 18 and just starting uni so was discounted for maintenance.

This is helpful. Thank you.

Again, this isn't quite right. You're not distinguishing between "needs" and "compensation." Debates about who gave up a career or who had their careers enabled only really happen in big money cases. There is no point debating how much money someone should be compensated for giving up a career and becoming a SAHP if there ex-spouse can't afford to pay spousal maintenance or can only afford to meet bare needs. At the same time, you can't tell someone who has never worked and is incapable of starting a career either because of age or disability that SM doesn't apply to them because they didn't sacrifice a career.

SM is almost always a needs based calculation. In big money cases like McFarlane compensation may come into it, but there is no point having that debate unless the money is there to pay it.

Nearly 6 years ago. Friends divorced more recently. I don't claim any benefits.

Okay, so you don't claim any benefits because presumably you can't in which case your own salary is at least £30k. So your ex must be earning an awful lot to pay spousal maintenance to you on top of child maintenance to avoid undue hardship?

Again, more assumptions.

OP, wait for some legal advice, no one here can tell you, as it depends on lots of things.

Well, I would assume this on the basis that I would assume you are a reasonable person. I would prefer to give benefit of the doubt and assume you are not refusing to claim benefits that you are entitled to or not getting benefits because of a refusal to work a minimum number of hours in the week because in either of those scenarios you would not be maximising your earning capacity.

Either way, there are clearly reasons why you are receiving SM that you don't wish to divulge and would not be relevant to most people.

@BetterFuture1985 - are you a divorce lawyer or are you basing all your responses on your one experience of spousal maintenance and divorcing?

OP I would do as suggested and post on legal, you might get posters with more experience/expertise.

@BetterFuture1985 is clearly not a divorce lawyer

He’s extrapolating from his limited experience as an individual that was never likely to pay SM because he earns far to little.

My now husband had to pay SP to his xwife when they divorced, they had no kids & she worked part-time by choice!

That was about 9 years ago!

@PegasusReturns I thought as much but I thought I would at least ask 😁

Why are you picking on me? 😁

I'm not the one posting inaccurate rubbish like @Summersolargirl making people think they only have a claim to SM if they've made a direct contribution to their ex's career! I even added a family solicitor's handle to one of my posts so that they could verify the accuracy of what I was saying for goodness sake! So lay off!

I do have some experience of the financials of divorce but mainly HNW. I trained as a forensic accountant so it was part of the day job (hunting for hidden assets!) once upon a time although I'm much more focused on financial crime like money laundering and counter-terrorist financing these days. However, as you can imagine, the kind of people who hire a forensic accountant from a well know firm of accountants are not generally "ordinary" cases!

Consequently I used to speak to family solicitors fairly often and got some understanding of why spousal maintenance was paid and can reasonably deduce why it would be rarer now. It's all manner of reasons from changes in welfare rules where SM reduces UC to social expectations that adults work when their children are in secondary school (Wright vs Wright being important here). There's the financial crisis making judges less confident about predicting higher earning spouses' security of income; there's the cost of housing reducing the payer's ability to pay; there's Waggott vs Waggott establishing that the sharing principle doesn't apply to income. All manner of reasons that might influence a judge (or much more commonly, solicitors to advise in drawing up a settlement) to apply the law differently now to how it was before and quite a lot of that change has really happened since 2015.

I'm sure @BatshitCrazyWoman and her friends got spousal maintenance for the right reasons but unless it was a negotiated settlement I find it unlikely that a payer would earn less than at least £100k unless we were talking about a couple in their 50s with grown up children where benefits came less into play. The reason I come to this conclusion is that looking with a financial rather than a legal perspective based on my own calculations in an earlier post I can't see a benefit for a recipient to remain financially tied to an ex (i.e. if all it's doing is cancelling out UC, why would you want to rely on an ex rather than the government for income and also why would a court even allow someone to act in bad faith in this way).

If I said he's at least 60 now, would I be right?

@BetterFuture1985 I ask because you are acting like an authority on the subject, when you are in fact not. You are writing long posts laying into poster for providing their own experiences and telling them they are wrong. You have no way of knowing whether the OP would get SM from your limited experience. I work in a similar world to you before you try to explain forensic accounting to me.

First of all, I'm not acting like an authority on the subject because you don't need to be an authority on the subject to notice that some of what is being posted here is garbage. You don't need all that much legal training to spot it. Also, you don't have to be a genius to do the maths and work out what the limits are going to be. I very much doubt there is anyone out there paying more than half their income in maintenance and if they are then I'd bet what's left of my assets on that being their choice rather than their obligation!!

Second, it's not "acting like an authority on the subject" to challenge people who claim to buck the trends and then won't share why. All I'm doing is exactly the same as what you are doing to me.

Third, I have repeatedly advocated a solicitor's advice to corroborate what I am saying because - as you will notice I often say in my posts - people who don't use solicitors are unwise. People should not only use solicitors, they should use solicitors who know the local courts. The best thing my ex-wife did was get a solicitor who managed her expectations and saved us a lot of time and money. Also, it's going to be free for the OP to go and sit down with a solicitor and ask this, so why wouldn't you do it!

And finally, what are the odds of two forensic accountants being on the same thread? I moved away from it a little when I got into my current role and focused on AML. What's your area of expertise?

@BetterFuture1985 Gosh no idea why you might have got divorced, nope, can’t think of why that might have been at all.

I didn’t say I was a forensic accountant, I said I work in that world. I’m a Chartered Accountant for a big firm. Not pretending I know divorce law inside and out however. All I did was ask if you were a divorce lawyer, you are very defensive for someone so sure of the facts.

You seem to be quite on the offensive with me and not others who have posted utter garbage. Can't think why you might be on a divorce forum either what with picking on someone and then attacking them again when they defend themselves. You must be a delight to be around!

What area of accountancy?

Me on the offensive, that’s funny. I clicked on the thread from active as I have some knowledge of SM. Saw that I didn’t know the answer and then saw your posts and felt the need to ask your background given how much you were pouncing on other posters. I see you prefer to be the challenger rather than be challenged. I am not disclosing anymore about my career, it is none of your business frankly and am going to step away now.

OP I hope you get the advice you need, preferably from a family solicitor!

Even then not very likely at all ime

Courts prefer clean breaks.