What is spousal maintenance?

‘Alimony’ may be a term you are familiar with, and we can probably attribute that to day-time American TV dramas. We have a similar concept in Australia, but in this jurisdiction, it’s called spousal maintenance.

Spousal maintenance is payment made by one ex-spouse to another. Essentially, where one ex-spouse is unable to provide for himself or herself after separation, the other spouse may have to make reasonable contributions to their needs. Although spousal maintenance is a very broad concept, its purpose is to provide for the basic living needs of a former spouse.

Below I have outlined FAQs regarding spousal maintenance; some food for thought if you are wanting to apply for spousal maintenance, or if you are thinking that you may be obliged to pay spousal maintenance.

Who can apply for spousal maintenance?

You don’t have to have been married to receive spousal maintenance. While those who were married, but are now separated or divorced can apply, so can spouses of de facto relationships. Although, if you want to claim spousal maintenance from a former de facto partner (including a same sex de facto partner), you have to prove one of the following:

  • Your relationship lasted for more than 2 years; or
  • You have a child with your former de facto partner; or
  • Either you or your former de facto partner made significant financial contributions to the property of the other; or
  • Your de facto relationship was registered (at Registry of Births, Deaths and Marriages or an interstate/overseas equivalent).

What are the time limits for making a spousal maintenance application?

If you were married, and are now divorced, you have 12 months from the date of divorce to apply for spousal maintenance. Similarly, if you were formerly in a de facto relationship, you have two years form the date of separation to apply for spousal maintenance. If you were married and are now separated, but are yet to be divorced, you are not restricted by time limits and are at liberty to apply for spousal maintenance at any time.

How can you get spousal maintenance?

In practice, there are two ways that you can receive spousal maintenance:

  1. Private agreement between you and your former partner; or
  2. Court ordered spousal maintenance.

If you and your former partner can reach agreement about maintenance (how much, how often and how it will be paid) you can enter into a private agreement. This can be ‘formalised’ by entering into a Binding Financial Agreement or Consent Orders filed with and approved by the Court.

If you are unable to reach agreement, you can make an application to the Federal Circuit Court or Family Court seeking spousal maintenance payments.

What do I need to prove to receive spousal maintenance?

Under the Family Law Act, you have to prove two things:

  1. You are unable to support yourself adequately; and
  2. Your former spouse is reasonably able to support you.

Broadly speaking, the court will explore whether you are able to financially support yourself from your own resources.  With that being said, the Court will not expect you to exhaust all your resources before you can apply for spousal maintenance. For example, modest savings in your bank account will not bar you from making an application for spousal maintenance.

In determining an application for spousal maintenance, and the quantum, the Court will also turn its mind to factors such as:

  • The age and health of you and your former spouse;
  • The income, property and financial resources of you and your former spouse;
  • Which, if either, has the care or control of the child(ren);
  • Child support arrangements (remembering that child support payments are different to spousal maintenance payments); and
  • A standard of living that is reasonable.

How is spousal maintenance paid?

Spousal maintenance can be paid on a temporary basis or a final basis. You may find, for example, that you only need financial support (maintenance) until your property settlement is finalised. In such a case, you could apply for maintenance on a temporary basis until the assets of your relationship have been split and finalised. Spousal maintenance can be paid in one lump sum, or periodically (weekly, fortnightly, monthly or yearly).

Spousal maintenance does not always manifest as monetary payments. Although it often does, it is important to note that maintenance can paid in other ways such as by the transfer of a motor vehicle or investment property.

When do spousal maintenance payments end?

There is no hard and fast rule about when spousal maintenance payments will end. Payments can cease at a pre-determined time, where one party remarries, if there is a change in financial circumstances (e.g. a new job) or upon the death of either spouse.

If you would like further advice, feel free to make contact with me at Kate.Graham@bgm.legal.



Social Media 6 Months On…..

It’s been 6 months since my inaugural blog. While there have been many things which have happened and about which I would be happy to write, I need to face up to my first 6 months as a social media participant.

‘Participate’ may be giving me too much credit.

On the positive side, I have:

  • Written 4 other blogs, which took longer me longer than it should have and which I have then, with some difficulty, posted to my web-page;
  • Learned how to like and share on Facebook;
  • Opened an Instagram page, although, I confess it is to see my friend’s renovation pictures – I haven’t posted anything, but I have an account;
  • Attended and, to some extent, contributed to a social media workshop run by social media guru, Clarissa Rayward;
  • Learned the power of social media as a marketing tool; and
  • Attended my first social media-marketing meeting with Susannah Strauss of ECBD. Susannah is the grand-daughter of the Honourable Steven Strauss, Judge of the Full Court of the Family Court, who I hold in the highest esteem and done since I had the privilege of meeting him in 2001. I wonder what the Judge would have thought of practising in the world of social media?

On the downside:

  • My enthusiasm is quick to waver;
  • The ideas I come up with do not seem to be anything which hasn’t already been done; and
  • I drive my colleague, Orlena Moloney crazy asking: “Do I post this to Facebook or LinkedIn?”

My aim for the next 6 months:

  • Do everything Susannah tells me, on time;
  • To change the way I see the situations I find myself in and realise there are opportunities there for social media interaction;
  • Keep plugging away at posts and blogs, in the hope I start to find the ‘fun’ others seem to find in social media.

I acknowledge this may not be a world in which I ever feel comfortable but I am determined to persevere.

How do I Choose a Family Lawyer?

You are going through what is likely to be one of the most traumatic experiences in your life. The person you choose as your lawyer to help you through a separation can be a very important decision. How that person goes about the practice of law can help you to achieve an early or relatively inexpensive agreement with your spouse or can send you on a path which you may find difficult to get off.

I could write for pages about what I think are important attributes in a lawyer. I have narrowed them down to four considerations:

  1. Ask Around

There is no better way of cutting through positive advertising than asking others about their own experiences. With divorce rates as high as they are, it is not difficult to find others with probably more experience than they would like to have. Ask what they liked and what they didn’t like, to work out what might be important for you in the lawyer you select. Beware of firms who advertise that they win everything or never lose. That will not be true.

  1. Consider the Lawyer’s Level of Experience

Look for a lawyer who has particular expertise in family law. His or her fees may be a little higher but if they specialise, you can expect they he or she will be efficient. You can specifically look for a lawyer who is an accredited family law specialist and take confidence that he or she knows their way around the Family Law Act.

Think about how experienced you want your lawyer to be. It may be tempting to choose a less experienced lawyer because their costs are less and there are no doubt some fantastic newly admitted lawyers in practice. It may be better, though, for such important matters as your children and your life’s savings, to err on the side of caution and opt for more experience rather than less.

If you want to find out about a lawyer and their website does not give the information you want, call the Queensland Law Society and ask those questions.

  1. Meet the Lawyer

Make sure you meet, or at least talk, to the lawyer you are thinking of retaining before you make a decision. You need to see if the lawyer is someone you feel comfortable with and “click” with. If, after the initial talk or meeting you do not feel comfortable with the lawyer, talk to at least one other, so that you can compare the different personalities and make a more informed decision. Remember that at any time if you begin to feel that you are not being looked after, you can take your file to another lawyer.

  1. Research the Firm’s Website

Websites are certainly important marketing tools for firms. They can convey the firm’s ethos and values. You can look at all of the lawyers and see if the message the website gives is that there will be a team of people behind you, rather than a singular lawyer. Look at the focus of the website – is it “the fight” or is the focus on other options to resolve disputes? If “the fight” is what you are looking for, your choice may be the firm which advertises that as its strength. If you are hoping to avoid the cost, delay and risk associated with “the fight”, you might need to look at other firms.

My Top 5 Reasons to Avoid Court

I spend a lot of my time discouraging my clients from choosing Court as an option to resolve their dispute. If clients have not previously been exposed to the judicial system, some see it as a way of accessing “justice”, pursuing matters of principle and provide themselves “right”. The reality of what happens  during the course of litigation is sop very different. and I can count on one hand the number of cases in my career where a client has been “spat out” the end of the litigation and felt like these aims were achieved.
So when I am discouraging litigation as an option (and I do acknowledge that in a handful of cases it is the only option), my personal experiences are driving the search for another way. Those personal experiences have impressed upon me the “Top 5” reasons to avoid court and they are (not in order of importance):

The Uncertainty in General

Clients are blindsided when they learn that it may take numerous Court appearances before the same judge (all of which the client pays for) before there is some traction gained and some meaningful movement towards having orders made to address the issues in dispute. Clients who are “waiting for their day in court” are inevitably disappointed (as are the lawyers) when nothing is achieved on the first, or even the second, return date. That uncertainty continues for each court event, right up until the trial. Even at the trial stage, I have experienced being sent away for another year because there was more than one matter listed for the same day or days.

The Uncertainty of the Outcome

Even if a matter is heard by the judge, the outcome is unknown and it can be that way for a length of time, with many judgments being delivered after delays of months or even years. There are not many clients who relish the experience of leaving their lives in the hands of a referee for such a long time without an answer.

The Financial Cost

Most litigants feels the pain of having to pay their lawyers and experts. For most it is a struggle. They relay on help from family or borrow money at commercial rates. It would be fair to say that the cost of a one day trial is not less than $30-40,000 and will likely be much higher than that by the time valuations are prepared, the Mediator is paid, trial documents are prepared, the barrister is paid etc. For parties to “set fire to” not less than $60,000 is a blow for most families.

The Delay

It is usual for the time between filing an Application and a final hearing to be in the order of 2 years or more. During that time, children’s needs change so, values of assets can change, employment circumstances can change and parties own personal circumstances can change. Each of these circumstances can require evidence to the updated, meaning that costs increase. Financially, clients “tread water” waiting for a hearing and once the hearing takes place, there is ordinarily a delay or months or sometimes years waiting for the decision. The delay causes many clients to lose opportunities, whether they be employment, investment or in their personal lives because the litigation takes such a toll.

The Health of the Family Suffers

Families in litigation have already suffered the experience of the family unit breaking down. If parties cannot resolve their dispute without resorting to litigation, then the level of conflict which that litigation breeds most often irreparably damages the last vestiges of goodwill between the parties. Litigation makes it very difficult for parties to co-parent, effectively or at all, meaning more suffering for children. The awkwardness and even outright conflict clients describe at having to face the other spouse at school and sporting events undoubtedly impacts children. From a personal perspective, the stress and pressure brought about by litigation has an effect on every single client and it is not uncommon for clients to need psychological intervention or medication to help them make it through to the end of the process.

There are certainly other reasons but these 5 are the ones at the forefront of my mind when I am actively discouraging clients from selecting court proceedings as the solution to their dispute. Of course, there are some matters which require judicial intervention and those matters become very clear, very quickly. In those matters, quick and firm action is required and unfortunately, despite my reasons to avoid it if possible, litigation remains a significant part of day to day practice as a family lawyer.

If I can help you with the alternatives to court or if your matter is one for which you believe needs immediate steps to be taken, please feel free to contact me on Kate.Graham@bgm.legal.

Pitfalls for Payers of Binding Child Support Agreements

Most often when we are acting for the income earning spouse, we are concerned with “capping” the client’s liability for child support. Even though the agreed amount often consumes a large”chunk” of the payer’s, there is security in the knowledge that that the obligation has “topped out” even if the party’s income increases and that anything more is voluntary. A word of caution, however. In these uncertain times, it is not improbable that a person may, through no fault of his or her own, lose income completely, have that income reduced or have their financial circumstances change for the worse. The last example is particularly relevant in the case of self employed people.

Once parties enter into a Binding Child Support Agreement and it is accepted by the Child Support Agency as meeting the necessary technical requirements for such an Agreement, the Agency can then take on the role of enforcing the terms of the Agreement and collecting periodic payments which are payable pursuant to the Agreement. The Agency can take steps such as garnisheeing wages and tax returns or prevent the payer from leaving the country.  If the Agency refuses to accept that the payer cannot pay, arrears will accrue.  The only option available to the payer is then to apply to the Federal Circuit Court to set the Agreement aside and “set” the child support payable for the period since the payer fell into default. That of itself is a costly and lengthy exercise.

The other option to a Binding Child Support Agreement, a Limited Child Support Agreement, is sometimes less attractive because it can be brought to an end by either party if his or her income varies by more than 15% or after 3 years. However, as an alternative to being “locked in” to a Binding Agreement for many years but with which the payer is unable to comply, perhaps more consideration ought be given to Limited Agreement in a wider range of circumstances.

If you would like to know more about Child Support Agreements, feel free to get in touch.

View my full profile at http://www.bgm.legal.

Catching Up

If anyone describes me as being “technologically backward”, that would probably be an understatement.

Given my failure to understand anything other than operating the basics on my phone, I have managed to resist the lure of social media of all forms. I have told myself that my resistance is because I don’t have enough time to keep in touch with my friends and colleagues in person, without having the burden and expectation that I will communicate on line. Deep down, though, I acknowledge it is also because I find all things technological fairly daunting. It just doesn’t come naturally to me. In setting up our new firm, I am sure my colleagues have quietly lost patience with my cries of, “I can’t do it” and “Mine doesn’t work!”.

My 2 co-directors at BGM Family Lawyers outstrip my knowledge of all things technological, and particularly social media related by such lengths that I often need to admit that I have no idea what they are discussing. I acknowledge, though, that social media and technology generally are excellent ways to reach lots of people at once and to keep your profile “up” in an immediate and inexpensive way.

So, never being one to shy away from a challenge once I can be convinced to accept it, I recently bit the bullet and set up a Facebook page (actually, I admit, my husband did it for me). Whilst I haven’t yet made a post, I have replied to a post and been brave enough to “share” and “like”. I’ll build up to bigger and better participation, with the aim that I won’t offend anyone or show myself up as a complete novice.

So, when I make mistakes and you want to point them out to me, please do, but be kind. I’ll revisit this topic in 3 months, 6 months and 12 months to see what, if any, progress I’ve made.

View my full profile at http://www.bgm.legal.

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