Who gets what income after you have separated with your partner?

Family law has developed two mechanisms in which income or ‘support’ is paid between former spouses:

  • Spousal Maintenance; and
  • Child Support.

The payments must be made in accordance with varying requirements.

Spousal Maintenance

Spousal maintenance is paid when there is a disparity between the parties’ income.  You may have heard of the term ‘alimony’ in pop culture, which is a similar concept in English and American law.

Obligations to pay spousal maintenance can arise when you are married or in a de-facto relationship.

A former spouse can be obliged to pay maintenance if the other spouse is unable to support themselves adequately due to:

  • Caring for children under the age of 18;
  • Not working; or
  • Any other adequate reason.

Consideration must also be given to your respective:

  • Age and health;
  • Income, property and financial resources;
  • Children (including age and who they reside with);
  • Commitments that are necessary to enable you to support yourselves and your children;
  • Standard of living that is reasonable in all of the circumstances;
  • The pursuit of education, training or establishing a business to allow you to obtain adequate income;
  • Contributions to each other’s income, earning capacity, property, and financial resources; and
  • Duration of the relationship or marriage.

The spouse pursuing the claim will then need to evidence:

  1. The extent of their reasonable needs; and
  2. Whether their former spouse has the capacity to provide the support necessary to satisfy a claim.

We can assist you in negotiating or defending a spousal maintenance payment, without necessarily having to knock on the door of the Court.

If necessary, an application for spousal maintenance can be brought in the Family Court. The timeline to bring an application is within 12 months of the date of divorce or within two years of a de facto couple separating.

If you are reading this and consider you may have a claim for spousal maintenance, or may face a claim for spousal maintenance, it is helpful to keep account of your reasonable and normal expenses. The expenses you claim should align with the usual spending prior to the dissolution of the relationship and be supported by receipts/invoices/bank transfers.

A spousal maintenance claim only takes into account your own personal needs and expenditure. Payments in relation to children must be pursued through the separate mechanism of child support.

Child Support

The purpose of child support is to account for the costs of the children that you and your former spouse have together.

The amount of child support to be paid is usually determined by the Child Support Agency (CSA) and is worked out by reference to a complicated equation.

You can also reach an agreement with your former spouse about how much child support is to be paid. This has to be documented by way of a regulated Financial Agreement. The agreement can be lodged with the CSA.

You can obtain an indication of what you may receive, or be obliged to pay, by using the online calculator available here: https://processing.csa.gov.au/estimator/About.aspx.

Unless agreed between you and your former spouse, child support is collected by the CSA. Generally, all issues to do with child support will be directed to the Child Support Agency, unless a special matter needs to be dealt with by the Family Court.

If you are not happy with the assessment, you can make a departure application. This is a departure from the ordinary child support assessment.

A departure application will be granted in special circumstances, if:

  • The costs of maintaining a child are affected by high costs of caring for, educating or training the child in the way both parents intended;
  • The parent’s necessary expenses significantly affect their capacity to support the child;
  • The child support assessment is unfair because of the income, earning capacity, property or financial resources of one or both parents; or
  • The parent’s capacity to support the child is significantly affected by:
    • Their duty to maintain another child or person;
    • Their high costs of enabling them to spend time with or communicate with, another child or person they have a duty to maintain; or
    • The costs of maintaining a child are significantly affected by the high child care costs for the child (and the child is under 12 years of age).

The process of undertaking a departure application usually involves providing material to the CSA. We can assist you in determining whether you should proceed to the CSA or apply directly to Court.

If you would like to speak to someone about your eligibility to receive payments or resist making payments to your former spouse, call us on 1300 654 590 or email info@andreyev.com.au.  We can assist you in both determining your need for spousal maintenance or defending an application. We can also assist you in pursuing or defending an application for child support.

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