My initial short blog came about in response to a query from a father who had been separated for 10 years and whose former wife had made it quite clear that she had no intention of seeking paid employment. The children were well into their teens and father still paid all expenses directly. As a result, he was still living in his parents’ spare bedroom. There was a distinct inequality in the parents’ living circumstances and this obviously affected (and had affected) his time with his children.
This is perhaps a more extreme example but facets of it are true in a lot of cases. Whilst most people are not prepared to screw their former spouse to the wall, many do feel a great sense of injustice when a relationship breaks down, a belief that ‘it is not my fault’ and feel sure that their life, and that of their children, should not change. Unfortunately, the law is above all things dispassionate and pragmatic and will require that both parents cut their cloth.
There are situations where spousal maintenance is appropriate but there are 3 important points to consider:
1. It depends on the payer’s ability to pay
Needs may be completely reasonable and justified but if there isn’t sufficient funds to pay spousal maintenance, it will not be awarded by the Court. This is a purely mathematical exercise.
2. The Court has a duty to impose a financial clean break wherever possible
Therefore, lawyers have to consider other options to limit or offset spousal maintenance with lump sum or property transfers and it is often limited to a period of retraining or adjustment unless there is a great differential in the parties’ earning capacities.
One parent is often very anxious to retain a family home at the time of great change for children, quite understandably. A larger capital settlement for that parent can sometimes be justified so long as that parent does not also seek significant spousal maintenance in order to run that property.
Here parents can be very creative. I have known parents open hypnotherapy studios in the garden, register for childminding or take lodgers to cover the deficit. I have also known parents, when pain has subsided a little and life seems a bit more manageable, accept a new start in a less expensive property might be preferable to spending the children’s teenage years without any disposable income to purchase so much as a cinema ticket.
3. Shared residence orders are now supposed to be the rule rather than exception
Whilst shared residence does not mean equal time with children it usually does incorporate weekday time and parents are more and more likely to share the costs of childcare. Childcare is expensive but, for many parents, it is necessary to pay it and top up an already stretched income before and after separation. Making two houses from one is always going to be a financial conjuring trick.
Last week, in a case of mine, an experienced and well regarded family judge told the mother that it was in her best interest and her child’s best interests for her to work. The child in this instance was 2 years old. Guidance does not come clearer than that and to suggest to a parent that all of his or her expenses will be paid by the other parent is setting them up for a fall. It is more difficult to give this straight advice from the outset but more responsible than providing false promises and, when responsibility has been taken away from parents and the Court has imposed a decision, presenting a £20,000 bill.
If the Court is unlikely to award spousal maintenance, parents must be advised of this. This should of course first be discussed between parents but there are rarely surplus funds and parents often want guidance as to what they can expect to receive or what they should be paying so they can have informed discussions with their spouses.
I often give advice I don’t like and clients do not want to hear. I am paid to advise on the law as it is and not how it should be. I care deeply about my clients and work hard with them at a time of great change. I believe I also have a professional and moral responsibility to plan, prepare and problem solve through these changes with my clients. I have explained how to pay gas bills, poured over college prospectuses, mentally planned holidays alone and redecorated living rooms, reviewed job applications and written the odd reference.
If it is clear that there will be a deficit between income and expenses this must be addressed practically if spousal maintenance is not appropriate. Return to work or an increase in hours often form part of this discussion, particularly as building self confidence and esteem, achieving independence and making new friends are very important (if challenging) for some.
I make no judgement as to whether separated mothers should or should not work. Many would prefer financial constraint than compromise on how they feel they should raise their children. Many separated fathers concur. But the economic situation of both parents very often means spousal maintenance is not a viable solution. Ultimately, if the Court considers mother could undertake some paid work then this will be factored into the likely order and solicitors must advise on how the deficit can be met. The decision on how she will do so, is, of course, hers.