Child support and spousal maintenance in Australia are two
very different things and are administered in two very different ways.
Surprisingly to some lawyers, many people do not understand
the reason for the distinction between the two types of payments may arise or
that they are even separate things .
Child support is usually based on a formula and assessment
made by the Commonwealth Department of Human Services (formerly the Child
Support Agency).
This formula is based on incomes, nights of care and the
number of children subject to the assessment; the obligation to pay child
support arises from an acknowledgement, whether through a DNA test or simply
agreeing, that a party is a biological parent to a child.
The amount is assessed and can be collected by DHS through
regular voluntary payments, by garnishing wages from your employer, or in some
cases by taking stricter enforcement action against bank accounts.
The payments then get sent to the other parent who has been
assessed as requiring the child support and will last until a child turns 18
years old or finishes their last year of high school.
The family law courts usually do not apply except in
circumstances where people make applications, often very costly in comparison
to the cost of any assessed amount, for an order to vary the child support
amount for one reason or another.
People can also enter child support agreements of varying
types that allow the parties to either pay more child support (and direct those
payments towards schooling , health, extra-curricular activities and the like),
less child support or to pay lump sums to avoid having ongoing obligations.
These types of agreements are sometimes made as part of a
parenting dispute between parties or as part of a property settlement in order
to provide some ongoing assistance when that assistance is to be directed
towards children directly rather than through their parent.
Spousal maintenance is a term for a few types of payments
that somebody can agree to pay, or a family law court can order for parties who
are engaged in a property settlement.
These are payments that are calculated looking at a person’s
income and expenses, seeing if their legitimate expenses are higher than their
income, and then examining their former partner’s income and expenses.
If the former partner’s income exceeds their legitimate
expenses they may have ‘capacity’ to pay and may be required to do so.
The purpose of these payments is usually to assist the person
with the ‘need’ to get back on their feet or to be able to live in a lifestyle
to which they have reasonably become accustomed as a result of the other
person’s actions.
Usually these payments are made only during proceedings /
while a dispute is ongoing and are often ‘capitalised’ as a lump sum in a final
settlement.
Internationally there are differing attitudes towards
spousal maintenance or ‘alimony’ and whether these payments should be
ongoing and this may effect where you might start Court proceedings.
There are important differences between child support and
spousal maintenance that may not be clear to people entering the family law
system, and that lawyers may not realise they need to explain to their
clients.
If you would like more information, call our expert team on
03 9614 7111 or Melbourne@nevettford.com.au
to discuss your situation.
