Maintenance & Child Support
If one party can show that they have a financial need to be maintained by their spouse and their spouse has an ability to pay, then one party may be liable to support the other.
Spouse Maintenance
Sometimes parties agree that the spouse maintenance will be payable until their death or re-marriage or for a specified period of time. Some of the factors that the Court will take into account in determining whether, to make orders for spouse maintenance are:
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Age and state of health of both parties.
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Either of the parties has the care of a child of the marriage under 18.
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The income, property and financial resources of each party and their physical and mental capacity for employment.
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The financial means and obligations of each of them.
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Whether they are supporting another person.
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The standard of living which is reasonable in the circumstances.
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Whether payment of maintenance would enable the recipient to undertake a course or retraining and enable them to earn an income in the future etc.
An application for spouse maintenance must be made within twelve months of a divorce being granted. If a divorce has not been granted there is no time limit to bring this application.
Child Support
Child support refers to the financial payments, by the parents (or one of them) for the children’s expenses things like food, clothes, school fees, private medical insurance, extra-curricular activities and so on. There are several options for how you and your spouse formalise your child support arrangements after separation.
1. Administrative Assessment from the Child Support Agency (“CSA”)
The CSA is an arm of the Australian Tax Office. Either party can approach the CSA to ask them to issue an assessment so that the amount of child support can be calculated and the payments can commence.
Once the assessment has been done Child Support payments must be made regularly. The money can either be paid to the Child Support Agency and forwarded to the other parent or the parents can choose to collect it themselves.
The amount of child support payable by the parents of the children is calculated using a formula. The essential data to insert into the formula is:
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The children’s age;
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The level of care that the children spend with each parent; and
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Each party’s taxable income (according to the last tax return lodged).
You can investigate the child support you are likely to pay or receive by using the calculator on the CSA website: www.csa.gov.au
2. Private Agreement (informal)
Sometimes parents do not want to use the Child Support Agency. They reach their own agreement between themselves as to what amount is fair. You are free to do this, however, both parties always have the right to go to the CSA in the future.
3. Binding Child Support Agreement
There is strict criteria to ‘lock in’ the child support in one of these Agreements. Both parties must have legal advice with respect to the Agreement before it will be binding. You should discuss with your lawyer whether it is in your interest to fix the child support you are going to pay, or receive. The Agreement will be in place until each child turns 18 years of age. In order for a Child Support Agreement to be binding and enforceable it must be registered with the Child Support Agency and comply with the very strict requirements set out in the legislation, your lawyer will draft this for you.
A Binding Child Support Agreement can only be cancelled by agreement between you and your former spouse or by Court Order.
4. A Limited Child Support Agreement.
These Agreements provide some flexibility and generally fix the Child Support for a period of 3 years only. Then the terms of the Agreement are to be re-negotiated or if no agreement at that time can be reached the Child support will be as determined by the CSA.
Child support refers to the financial payments, by the parents (or one of them) for the children’s expenses things like food, clothes, school fees, private medical insurance, extra-curricular activities and so on. There are several options for how you and your spouse formalise your child support arrangements after separation.
1. By an Administrative Assessment from the Child Support Agency (“CSA”)
The CSA is an arm of the Australian Tax Office. Either party can approach the CSA to ask them to issue an assessment so that the amount of child support can be calculated and the payments can commence.
Once the assessment has been done Child Support payments must be made regularly. The money can either be paid to the Child Support Agency and forwarded to the other parent or the parents can choose to collect it themselves.
The amount of child support payable by the parents of the children is calculated using a formula. The essential data to insert into the formula is:
1.The children’s age;
2.The level of care that the children spend with each parent; and
3.Each party’s taxable income (according to the last tax return lodged).
You can investigate the child support you are likely to pay or receive by using the calculator on the CSA website: www.csa.gov.au
2. By Private Agreement (informal)
Sometimes parents do not want to use the Child Support Agency. They reach their own agreement between themselves as to what amount is fair. You are free to do this, however, both parties always have the right to go to the CSA in the future.
3. By entering into a Binding Child Support Agreement
There is strict criteria to ‘lock in’ the child support in one of these Agreements. Both parties must have legal advice with respect to the Agreement before it will be binding. You should discuss with your lawyer whether it is in your interest to fix the child support you are going to pay, or receive. The Agreement will be in place until each child turns 18 years of age. In order for a Child Support Agreement to be binding and enforceable it must be registered with the Child Support Agency and comply with the very strict requirements set out in the legislation your lawyer will draft this for you.
A Binding Child Support Agreement can only be cancelled by agreement between you and your former spouse or by Court Order.
4. By entering into a Limited Child Support Agreement.
These Agreements provide some flexibility and generally fix the Child Support for a period of 3 years only. Then the terms of the Agreement are to be re-negotiated or if no agreement at that time can be reached the Child support will be as determined by the CSA.
Adult children are entitled to seek adult child maintenance if they are unable to fully support themselves in circumstances where they are completing their education or they have a disability that prevents them from being able to support themselves.
The maintenance contribution to be made by the parents will depend on the child’s necessary expenses and the financial situation of each parent as well as the child.
The Court will take into account the income, earning capacity, property and financial resources of each parent together with their necessary commitments.
A child’s necessary expenses include things such as food/household supplies, utility expenses, transport and accommodation costs and expenses associated with education. Any special expenses that a child may have such as medical expenses will usually be considered as necessary. The Court will determine an appropriate amount to be provided for clothing, hairdressing, vehicle and telephone expenses. Entertainment and social expenses may be excluded.
It will be necessary for the child to show that they are attempting to contribute to their own support, taking into account their course commitment skills and the availability of part time work.