Spousal maintenance
1.
Maintenance – that is alimony – or spousal
support is paid in cases where there is substantial future earnings disparity. Women’s participation in the workforce has, in
a number of instances, reduced the need for spousal maintenance, although not
made it disappear. Yet almost everyone has some argument about this issue
applying in their own circumstances.
2.
Maintenance adjustments can come in two ways – a
“toss a coin” adjustment to proceeds of asset sales (via a property settlement)
or regular payment as an ongoing cash flow. A person who was primary care giver
to the kids is generally worse off post-divorce, more so if they have to
continue looking after the kids. In many
cases that reflect the fact that men work, and women more directly monitor
kids. Unfortunately it also incentivises some women to cling to kids and
justify not moving on. The preference is for a “clean break “ driven by the
very concept of no fault. This should mean dealing with the matter as a precise
adjustment to a property settlement, but judges again prefer lots of blurred
lines.
3.
Several factors complicate the analysis of
spousal support even in a “normal case” (e.g. no health issues, no violence,
reasonable dosh):
·
Judicial concern that the main care giver is
financial disadvantaged is real, yet it is applied widely and the role of other
care givers (grandparents, a friend to collect kids after school, paid carers) is
yet to be properly teased out(actual care issue) . Accordingly more to argue
about.
·
The “clean break rule” doesn’t address
difficulties primary care givers face re-entering the workforce after a long break,
whatever the children’s current ages and care needs (lost opportunity issue). Yet the judicial reluctance to ignore
legislative sign posts on a clean break may be one way to achieve certain fair
outcomes in specific cases, but it pushes noise through the entire system at
the expense of signals. Accordingly more
congestion in the queue.
·
Some wives worked for a long period so hubby
could study to become a surgeon earning mega dollars (a compensatory issue, in
some cases)
·
A need to reduce contingent reliance on the
public purse by pushing primary economic impact onto higher earnings spouses
·
Questions of
”structuring” future earnings (avoidance issues), or sometimes just
hiding them (scumbag behaviour)
·
Re partnering stability (actually re marriage stability) and the obligations of other
persons
·
The concept that divorce is a no fault issue, although
such matters are often intertwined in fact.
4.
Unfortunately men’s rights groups complicate a
decent outcome by lobbying for limited payments. On the other side academic nut
jobs, genuinely concerned with the 2000s and the impoverished (who deserve far
more support than currently given).
5.
Some but not many adjustments are made when
there is a property split. Many middle class disputes wash up in a property
adjustment. Again, no math or guidelines. In this area it’s largely a coin toss as to
quantum on the day in court. And to be fair men win out in the long run, as
women are, generally, worse off financially post-divorce. For that reason some husbands’
pay 60% and move on, hoping for reciprocity of decency, by having her allow him
lots of access in seeing their kids. Others try and outspend the wife- buy the
kids with future loyalty rewards and trips to see grannies laden with presents
from your brother.
At this point of the economic cycle
though it’s not clear that a male winner trend is inevitable.
6.
Support can also take the form of an ongoing
payment. Ongoing spousal support payments can in some cases be hard to
practically enforce given hostility between separated parents (although these
are collected now via the government). The regime requires that one spouse is
unable to support themselves, while the earning spouse is financially able to
provide support. About 8% of all “pay as
you go” arguments, that are litigated, result
in ongoing spousal support payments.
Child maintenance
7.
You are responsible for paying for your
children, and keeping them in a manner to which these innocents should have expected,
but for the separation. That’s the law-
you don’t wait for a court order.
8.
There are a set of “cash tables” in The Child Support
Act. For a middle class parent that’s about $ 18,000 per year per child, cash, scaled
to $26,000 for 3 children; and increasing as a child get older (turns 13,
effectively). Split between the parents, so most parents, when agreeing
parental time, extrapolate support on a “divide by whole days with the child,
and net, basis”, although that’s not precisely how it works. These tables are a
guide only and it is the actual expenses of each family in their own
circumstances that matter if you litigate. You will get a call from Child Support and
should get 2-3myears tax returns ready.
9.
Arguments also arise around future schooling
options for kids. For high net worth families there is an evolving argument
over setting aside sinking funds or trust funds to meet private school
fees. A right to private schools- the
lawyers love this stuff.
Property Orders
The Family Court has extensive powers to override legal
title, beneficial ownership and bind third parties in relation to a matrimonial
real estate dispute. If the property is
in her name it’s possible to register a caveat against land, but that’s not practically
relevant. Accept that you will lose.
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