Spousal Support- What You Should Know

Spousal support is probably the most uncomfortable topic discussed in mediation. I always see the same look on peoples’ faces when I bring it up. The potential “payor” feels that their soon to be ex’s hand is reaching into their pocket, and the “receiver” worries they will be seen as greedy ex’s. There’s a detrimental, disappointing, daunting sentiment that oozes from the topic of spousal support, and everybody wants to talk about it ….but last, if possible.  

LET’S DISSECT DOUBLE S, SHALL WE? 

Spousal Support is in two statutes; Family Law, section 56-63, and the Divorce Act, section 15.2, 15.3, and 17. 

In a court setting, wherein spousal support is being considered by a Judge, they will often not only rely on the two statutes above, but often draw from previous case law.  

Spousal support exists to either compensate one spouse for past loss or future economic disadvantage.  

Let me explain… 

An example of past loss is when a wife had stayed home for a number of years to take care of the kids- and in doing so, lost on work advancements, seniority in her career, pension benefits, or potential for income increase. 

And an example for future economic disadvantage is when a spouse at the time of separation is of a senior age, has sparse prospect for gaining employment, or their income is substantially lower than their spouse.  

BY THE WAY, IF YOU QUALIFY FOR IT, IT DOESN’T MEAN YOU WILL GET IT. 

Here’s where it’s necessary to talk about entitlement vs. amount and duration. 

A wife may be entitled to spousal support because of past loss, but if her husband only makes $50,000 a year and needs to pay child support for 3 children, then spousal support is not possible. He still needs to have enough left over to support his own livelihood.  

In a case, where there is entitlement, and the payor makes enough money to pay it, then you can proceed to do the calculations based on the Spousal Support Advisory Guidelines. You can also reach out to us, at TDS and we can run a spousal support calculation for you.  

Spousal support usually has a time limit. The Advisory Guidelines tell us that it’s paid between half to the total duration of the cohabitation. There’s also the famous 20-year rule, which in a broad sense, states that if the spouses lived together more than 20 years, or if you add the age of the recipient to the number of years they lived together, and it equates 65 years, spousal support may be paid indefinitely if the relationship lasted 20 years or more.  

OKAY…..SO YOU ARE ENTITLED, AND YOU GOT YOUR NUMBERS FOR AMOUNT AND DURATION, NOW WHAT? 

If you’re reading this, it means that you like to keep things amicable and fair with your spouse. Know that you don’t have to go by the face value of the numbers you’re getting from the calculation. Consider: 

Can they actually pay this amount and support themselves? 

Do I need the full amount I’m entitled to? (do a budget to find out) 

How long do I need to be self sufficient, and stop needing spousal support?  

What is my plan for the next 5-10 years? (Gain employment-go back to school-open a business) 

Am I okay/can my spouse afford to pay the amount as a lump sum amount to be incorporated into our division of property settlement? 

 Two ways to find out: 

Either have a courageous and honest conversation with your spouse discussing the points above, or book a Zero Risk Divorce Assessment with us, and we’ll help you navigate this topic in a mediation setting.  

LASTLY, QUICK DOUBLE S FACTS: 

Spousal Support is income driven, and separate from the division of property.  

Child support before spousal support. If there’s not enough income to pay both, then child support precedes spousal.  

It’s calculated from the date of cohabitation to the date of separation. 

It is not an automatic entitlement to women- Men can be entitled too! 

Can be looked at as a lump sum payment at the time of separation or when dealing with the matrimonial property. 

There is no limitation period for bringing a claim for spousal support under the Divorce Act. However, the longer you wait, the less likely you will succeed.  

If you have a Spousal Support Order or Agreement already in place, and it no longer works for you, you can “vary” it. The easy route to do so is if your spouse agrees to sign an updated document. The tough but possible route is- you guessed it- submit an application in court.  

I’LL LEAVE YOU WITH THIS: 

You are not selfish for not wanting to pay Spousal Support, and you’re not greedy if you are entitled to it, and you want it paid to you. Everybody needs to make sure they are financially stable after divorce, and if spousal support is one piece of the equation that will allow that, then it should be discussed. Be open, be fair, and simply negotiate an amount and duration that will help the recipient, but not break the payor.  

And if you need support with your spousal support agreement, reach out.