In these unprecedented times, we have seen a disproportionate number of lives affected by the consequences of COVID-19 and lockdown. Whether this is not being able to go to work, working under reduced hours or income, or losing earnings completely, the recent times have proved to be increasingly difficult for many of us.
Spousal periodical payments (maintenance) orders will have been made assuming that, broadly speaking, people’s circumstances will continue as they have done in the past. As a consequence of the current circumstances, payers may no longer be able to afford to continue paying the spousal periodical payments in accordance with the order, and may be seeking to decrease, or even cease, these payments. Similarly, those receiving spousal maintenance may no longer be able to meet their outgoings and may be seeking to increase spousal periodical payments.
In any such times, it is vital that you have the best advice and guidance possible, and here at Fisher Jones Greenwood, we are on hand to help and answer your questions.
Can a spousal maintenance order be changed during the Covid-19 pandemic?
Either the payer or the payee of spousal maintenance can make an application to the Court for a variation. The Court has the power to increase, decrease, or terminate spousal maintenance orders, either temporarily or permanently. The court has a duty to consider whether it would be appropriate to limit the period for which periodical payments should be paid in future to that period which would enable the payee to adjust without undue hardship.
On a variation application the Court, having decided what the continuing financial support should be, also has a duty to consider whether the regular periodical payments should be substituted by a capital payment, such as a lump sum, property adjustment order or a pension order, in order to achieve a clean break between the parties. The court also has power to remit any arrears.
Before making an application it is important to consider that Court proceedings may take 6 to 12 months at which point each spouse’s financial circumstances may have returned to “normal” and the application may be out of date. Further, the costs of making the application may outweigh the benefit that is being sought.
As can be seen, the wide powers of the court mean that an application for variation of maintenance can have consequences which may be very different from what may have been anticipated at the outset. With this in mind, it’s highly recommended to seek the advice of reputable legal experts to determine the likelihood of your application being accepted.
What happens if an existing spousal maintenance arrangement cannot be paid?
First and foremost, the most cordial way to approach a situation where one party is unable to make a payment towards an existing agreement is to address it with your former partner. It is important that you have all of the relevant documentation as evidence as to why making a payment is not possible. For example, should this be as a result of a loss in earnings then you should obtain the necessary documentation from your employer.
It is worth bearing in mind that Courts are able to use their discretion to prioritise cases where the welfare of a child or children may be impacted.
Should a discussion with your ex-partner prove to be unsuccessful, or not an option at all, then you should move towards applying for a variation according to the correct legal advice.
Due to Covid-19 I am on Furlough leave and my earnings reduced, what are my options?
Again, the most amicable way to resolve a situation where you can’t afford to adhere to your current maintenance plan, is to enter into negotiations with your former spouse around a reduced sum. If, and when, your earnings return to normal, the original plan should be returned to. Do you know you can calculate your earnings with Coronavirus Job Retention Scheme calculator to find out how much you will take home?
If this refused then a variation should be applied for as per the instructions above.
Perhaps the most important takeaway when assessing one’s options around Spousal Periodical Payments is the necessity to seek the right legal advice for your case. If you require advice on spousal maintenance or other financial matters in connection with divorce, we have an experienced team of family lawyers who are able to advise and assist you on the best possible approach to take – contact Fisher Jones Greenwood by calling 01206 700113 or email [email protected].
Find out how the Family Law team at FJG have adapted to working from home.
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