Child Support & Spousal Maintenance

OVERVIEW

Child support and spousal maintenance can be important aspects of a financial settlement. We give advice and options as to the best approach and outcome, including drafting and advising on child support agreements.

OUR EXPERTISE AND APPROACH

Child support is usually resolved outside the court system. We will discuss child support with you to ensure that the correct amount is being paid, given your overall circumstances. We can assist clients to prepare for applications that will be decided upon by the Department of Human Services – Child Support.

We also advise clients about whether they can make a successful claim for spousal maintenance, or how to defend a claim made against them. We regularly draft Financial Agreements in relation to protection from future spousal maintenance claims.

Hidden First Field

Child support and spousal maintenance

Overview

Child support and spousal maintenance can be important aspects of a financial settlement. We give advice and options as to the best approach and outcome, including drafting and advising on child support agreements.

Our expertise and approach

Child support is usually resolved outside the court system. We will discuss child support with you to ensure that the correct amount is being paid, given your overall circumstances. We can assist clients to prepare for applications that will be decided upon by the Department of Human Services – Child Support.

We also advise clients about whether they can make a successful claim for spousal maintenance, or how to defend a claim made against them. We regularly draft Financial Agreements in relation to protection from future spousal maintenance claims.

Spousal maintenance

What is spousal maintenance?

Spousal maintenance is financial support payable by a husband or wife to the other to pay spousal maintenance if they are unable to support themselves adequately.  Once established, the liability may continue after divorce.

Spousal maintenance can be applied for at any time before a divorce becomes final.  However, once a divorce becomes final, there is a 12 month time limit for bringing an application for spousal maintenance.  It is more difficult to apply for spousal maintenance after this 12 month limit.

What the court considers?

There is no automatic right to spousal maintenance.  The applicant must show their need for maintenance and the other party’s capacity to pay.  A spouse could show a need for spousal maintenance if they are unable to support themselves adequately:

  • by reason of having the care and control of a child or children of the marriage who are under 18 years of age
  • by reason of age or physical or mental incapacity for appropriate gainful employment
  • for any other reason.

The applicant is entitled to a standard of living which is reasonable in all the circumstances.  In determining whether an order for spousal maintenance should be made, the Court will disregard any entitlement of the spouse seeking maintenance to any income tested pension, allowance or benefit.

Once a need for spousal maintenance has been established, the capacity of the other party to pay is considered.  There are a number of factors that the court considers when calculating spousal maintenance, including:

  • the age and health of both parties
  • the capacity of each party for gainful employment
  • the income and financial resources of each party
  • whether either party has control and care of a child under 18 years of age
  • what is a reasonable standard of living in all of the circumstances

Spousal maintenance can take several forms.  The Court may order spousal maintenance as:

  • periodic payments
  • a lump sum payment – whether in one amount or by instalments
  • a transfer of property

Spousal maintenance can continue indefinitely or be for a specific period of time.  Spousal maintenance may be payable until the finalisation of the parties’ property settlement.  Receipt of lump sum or periodic spousal maintenance has no effect on pension entitlements.  However, receipt of lump sum or periodic maintenance can affect entitlement to family payment.

Spousal maintenance can be varied with a change of financial circumstances of either party or a change in the cost of living.  Spousal maintenance ceases when the party receiving the maintenance remarries or dies.  Maintenance payments will automatically cease upon death of the payer or a date on which the order states it will end.