When spouses separate from each other and the one party moves out of the common household, I am usually confronted with some indignation from a spouse when they are asked to continue to contribute towards the upkeep and maintenance of the spouse that is unable to maintain himself or herself without financial assistance (or spousal maintenance). It does not make sense to the layperson, the marriage is broken down irretrievably, the spouses are both adults and both of them may even have gainful employment. In fact, many times the spouses despise each other and certainly do not want to assist with any further financial support. But spousal maintenance is not an emotional decision, it is a requirement that comes into existence by operation of law. And divorce lawyers do not make the law, but they are required to advise their client honestly and with due regard to family law.
Historically it has usually been the husband that is required to pay spousal maintenance, and this has been so as traditionally the husband would been in the stronger economic position. However, maintenance is not gender based, but rather based on affordability and the need to be maintained. Take for instance a marriage where the one spouse is not employed but has been taking care of the household and children. Such a spouse will be entitled to maintenance from the other spouse, either for a short period of time (6 months) or longer, depending on various factors such as the age of the person, the duration of the marriage, the ability of the non-working spouse to find employment etc. The reciprocal duty of support does not only cover necessary expenses of the more economically challenged spouse, but also extends to costs of litigation (i.e. legal costs).
Although it is not common, sometimes spousal maintenance will extend even after divorce. This would ordinarily be the case where the duration of the marriage was more than a few years, and the one spouse was the homemaker and took care of the children. The spouse would still have to show a court that it is just and equitable for him or her to claim maintenance after the divorce. This is indeed possible, but nowadays it is not as common as usually the economic times require both parties to be employed.
In summary, it must always be borne in mind that a separation from your spouse does not mean that you will not be required to take care of some, or even all, of the household expenses until a time agreed upon, or until ordered by a court, or until divorce.
Attorney @ Kim Armfield & Associates Inc.
1st Floor, The Colosseum, Regus Office, Century City