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Spousal support is a very hot topic, one which causes strife, angst and anger in many families. While few payors have difficulty comprehending the need and the obligation to pay child support, many payors are reluctant to pay spousal support.
And it is not just men who are ordered to pay spousal support. Women pay too, to their husbands, wives and common law partners, and just like men, they don’t like it either.
Hi, my name is Anna Troitschanski, and I am an associate lawyer at Feldstein Family Law Group. In today’s video blog, I will be discussing the basics of spousal support.
What is spousal support, how do you get it, how much do you get and for how long? These are big questions, big issues with big answers and not enough time.
While I could speak on this topic for days, today I will only give an overview. For additional information, I would encourage you to check out the other video blogs on our website that address the issue of spousal support in specific contexts. It is also important to be mindful that every case is somewhat different and one should consult a lawyer before agreeing to support or agreeing to release support. Family law lawyers are often stumped so it is not advisable to go at it alone.
First, who is entitled to spousal support? A disparity in income between you and your spouse does not automatically lead to entitlement. There must first be a finding or an agreement as to entitlement. There are three claims for entitlement: compensatory, non-compensatory, and contractual claims.
Compensatory claims are based either on a recipient’s economic loss or disadvantage because of the marriage- for example the roles assumed during the marriage or when the payor has received an economic benefit for which the recipient has not been compensated. Examples can be child care responsibility, leaving your job to move for the payor’s job, or helping the payor in obtaining his or her current employment position.
Non-compensatory claims involve claims based on need. This can be a need to cover basic needs or to maintain a certain standard of living such that it is commensurate with the standard of living enjoyed during the marriage. Many cases rely upon both compensatory and non-compensatory claims. There may, in fact, be entitlement on both bases. In long term marriages, it is common for support to be based on both compensatory and non-compensatory claims.
Lastly, parties can be entitled to spousal support contractually if, for example, a marriage contract exists that provides for support to be payable upon separation.
If entitlement is NOT established, the exercise ends there. If entitlement has been established we turn to the Spousal Support Advisory Guidelines (commonly referred to as the SSAG) to help determine quantum of support and duration. The SSAG were adopted by the Court of Appeal in Fisher v. Fisher. The SSAG essentially takes the factors essential in determining spousal support and plugs them into a DivorceMate calculator in order to arrive at a specified range of support that should be paid by a payor spouse. Although the court in Fisher basically adopted the SSAG, these guidelines have not been legislated or made mandatory in law; however, all courts are now referring to the SSAG in their Spousal Support decisions. If the SSAGs are not applied it may be a ground for appeal.
Once entitlement has been established, we next move to a determination of duration – how long should one pay support for their former spouse or common law partner? This depends on the duration of the relationship and whether there are children of this relationship. It depends on the age of the parties and sometimes on the age of the children.
Generally speaking, the duration is, at a minimum, one half the duration of the marriage plus cohabitation, and at a maximum, the total quantum of years in the marriage plus cohabitation. For example, a couple that cohabited for 2 years prior to a ten year marriage has a 12 year total cohabitation period. The support duration suggested would be 6 years to a maximum of 12 years.
However, the SSAG also incorporates hard and soft limits. As such, if there is a young child, the spousal support term can be increased to the time when the youngest child reaches 18. For example, if the child was 2 years old at the date of separation, then the maximum duration of support under the SSAG would be 16 years, even if the parties only cohabited for 5 years.
Additional rules similarly apply to older spouses. The Rule of 65 states that where a recipient of support’s age at date of separation when added to the period of cohabitation totals 65 or more, spousal support is deemed to be indefinite even if the cohabitation period was less than 20 years.
Of course, there are other exceptions to the general rule. For instance, in long term marriages or common law partnerships that are 20 years or longer, support is generally ordered indefinitely, subject to a material change in circumstances. Once again, the review and variation of support is the subject of a separate blog entirely.
Lastly, while the SSAGs provide a range of support payable by the payor on a periodic or monthly basis, it is important to remember that spousal support can also be paid as a lump sum, which can often provide spouses with the clean break for which they are looking. That said, there are inherent risks for both parties in accepting a lump sum award including a spousal support release in an Agreement. Once again, this issue requires a more in depth discussion and is the subject of a separate blog.
As daunting as all this sounds… it is. Do not go it alone if you can retain counsel to help you. Spousal support is one of the most fluid and challenging areas in family law. There are always changes and we, as lawyers, need to keep up with these changes, look to the case law and try to be creative to help our clients in a fair and effective way, looking not only to the immediate of today, but to the future as well.
I hope you have learned a little something today. For more information on this and other topics, please refer to our website or contact the Feldstein Family Law Group at (905) 581-7222 to book a consultation. I’m Anna Troitschanski, thank you for listening.