balancing the economic consequences of a separation.
Spousal support (sometimes referred to as maintenance or alimony) is money paid by one spouse to the other after separation. Usually, it is paid monthly under a written agreement or court order but it can also be paid by way of a lump sum payment. The purpose of spousal support to assist the lower income earning spouse following a relationship breakdown.
Are you entitled to Spousal Support?
In order to claim for spousal support, you must have either:
- Been married;
- Lived together in a marriage-like relationship for a period of at least two years (also referred to as a common-law relationship); or
- Lived together in a marriage-like relationship for a period of less than two years but have had a child with your ex-spouse.
It is important to note that no one is automatically entitled to spousal support. You either have to agree with your spouse that spousal support is payable and the terms of payment or apply to the Court for a spousal support order.
There are three legal bases for entitlement to spousal support – compensatory, non-compensatory and contractual. Sometimes a judge may make a finding that an order for spousal support is grounded on more than one bases, however, there is no presumptive entitlement to spousal support.
Compensatory Spousal Support
Compensatory support is intended to redress any economic disadvantages to the recipient spouse or the conferral of an economic advantage to the other spouse. For instance, if one spouse stayed at home to look after the children while the other spouse was able to advance in his or her career then then the spouse that stayed home may have a compensatory support claim.
Non-Compensatory Spousal Support
If compensatory principles do not apply, the needs of a spouse may be sufficient to make a claim for spousal support. Sometimes a spouse may be unable to support him or herself after the breakdown of a marriage or common-law relationship and this concept is rooted upon the belief that meeting the needs of the disadvantaged spouse rest with his or her former partner rather than the state. The courts look at the circumstances and numerous factors in assessing a non-compensatory claim (age, skills, education, opportunities for retraining, job prospects, and lifestyle).
Contractual Spousal Support
If the parties enter into a contract (separation agreement) to pay support then the payor would be obligated to pay spousal support by virtue of that contract.
Entitlement to spousal support is highly fact specific and not always straightforward. Before agreeing to pay spousal support or waiving your entitlement to spousal support is is important to get advice from one of our family law lawyers.
When considering your application for spousal support, courts consider these factors (and others) in the following way:
- If you stayed home to look after the children so your spouse could work or study;
- If after separation it will be difficult for you to find a good job or a job at all due to your absence from the workforce to raise children;
- If you were financially dependant on your spouse;
- If there is a significant change to your standard of living due to the marriage or relationship ending; or,
- If you will now need financial help for a period of time to be able to start fresh and become self-sufficient.
How Much Spousal Support Will You Get?
If you reach an agreement with your spouse or the Court determines that you are eligible for spousal support, the next step is to determine the amount you will receive and for how long. The amount a spouse receives for spousal support and the length of time spousal support is payable can vary greatly depending on the particular circumstances of relationship.
In BC, lawyers and the Courts typically use a guide referred to as the Spousal Support Advisory Guidelines.
These guidelines suggest how much and for how long support is payable based on factors such as:
- The length of the relationship;
- The number of children you have;
- If the recipient spouse for the caregiver during the relationship and the payor worked and advanced their career; and,
- If there is a disparity in income between the spouses.
How Long Will Spousal Support Be Paid?
Typically agreements for spousal support or orders for spousal support will include an end date. There are however, there are situations where there is no end date ordered – sometimes called “indefinite” support – and the payor may need to apply to the Court to ask for spousal support to end. In determining an end date, the length of the marriage tends to be significant factor.
Often the Courts will order spousal support to last between six months to one year for every year of the marriage or the common-law relationship. There are exceptions to this and the Courts do not always follow this trend. So, for example if you were married for 14 years, you may be entitled to between 7 and 14 years of spousal support.
If you are being asked to pay spousal support or being offered spousal support, we recommend that before agreeing to terms with your ex-spouse or applying to Court you obtain advice an experienced family law lawyer. Cote & Evans has a team of family law lawyers ready assist you with your spousal support questions and represent you in an application.