Spousal Support 101
This is the third instalment in the Family Law crash course series. Today we are going to look at Spousal Support, specifically, who can claim for it, what you have to prove in order to get it, how much it might be, and how it can be paid out.
Spousal support is one of the three corollary reliefs that the Court can grant with a Divorce Order (the other two being Custody and Child Support). Like everything else in Family Law, the rules are slightly different depending on if you were married to your partner or not. If you were married, we follow the Divorce Act and if you were not married, we follow the Alberta Family Law Act.
Who can claim and be sued for Spousal Support?
Under the Divorce Act
Either Spouse can claim Spousal Support from the other Spouse. A “Spouse” includes “former Spouse” and means anyone who is or was married.
Under the Family Law Act
“Every spouse or adult interdependent partner has an obligation to provide support for the other spouse or adult interdependent partner” (s.56).
“Spouse” includes former spouse and anyone who is a party to a marriage (is married).
“Adult interdependent Partner” includes former adult interdependent partners and is defined in the Adult Interdependent Relationships Act section 3 as a couple who has together for 3 years continuously or has a child with their partner and have lived together interdependently with “some permanence” or has signed an “adult interdependent partner agreement”.
Entitlement refers to whether someone is allowed to receive Spousal Support.
The Family Law Act has a preliminary step that must be met before someone can make an application for Spousal Support: the relationship must be officially over. This can be established in a few ways, 1) the couple gets an Order of Irreconcilability, 2) the couple separates and lives apart from each other, or 3) the couple is living together but the Court decides that they cannot reasonably be expected to live together, or that one spouse has unfairly denied the other of the “necessities of life” which include food, clothing or shelter.
Both the Family Law Act and the Divorce Act have a list of factors the Court will use to decide if a spouse will be awarded Spousal Support. The Divorce Act requires that the Court consider, 1) the length of the relationship, 2) the roles of each partner during the relationship, and 3) any Order, agreement or arrangement that the couple had come to previously about Spousal Support.
The Family Law Act has these three factors, as well as three others, 4) whether either of the Spouses are already paying or receiving Child or Spousal support, 5) whether the spouse who is to pay Support is living with someone who contributes financially and can therefore pay more support, and 6) whether the spouse who is to receive Support is living with someone who contributes financially and therefore needs less support.
Neither the Divorce Act nor the Family Law Act allows the Court to take misconduct by either party into consideration. The Family Law Act makes two exceptions to this rule, 1) the Court will consider actions made by one Spouse that increases the need for support by the other Spouse, and 2) the Court will consider actions made by one Spouse that affects the other Spouses ability to provide support. For example, if one Spouse cheats on the other the Court will not take that in to account when awarding Support. But, if one Spouse blinds the other then the Court will consider the impairment when making a Spousal Support Award.
The Family Law Act and the Divorce Act also lay out four objectives when awarding Spousal Support. These are, 1) to share the financial difficulties of the Divorce, 2) to share the financial difficulties associated with having children, 3) to make sure each party has enough money to live, and 4) to help each party become financially independent and no longer require Spousal Support.
These four objectives have been used to create two classes of Spousal Support, “compensatory” and “non-compensatory”. “Compensatory” Spousal Support focuses on the first two objectives and tries to figure out what the Spouse is owed from their contribution to the relationship. “Non-compensatory” Spousal Support looks at what the Spouse needs now that the relationship is over. The third class of Spousal Support is “Contractual” and comes primarily from the requirement of the Courts to look at any Orders, Agreements, or arrangements the couple has made.
The Court will consider all of the factors and all of the objectives and they will decide if either of the Spouses has Compensatory, Non-compensatory, or Contractual entitlement to Spousal Support.
Quantum and Duration
Once the Court has established entitlement they will decide exactly how much the Spouse should be paid (“Quantum”) and for how long (“Duration”).
Unlike the Federal Child Support Guidelines there is no official table that says how much each Spouse should pay each other in Spousal Support. However, there is an unofficial table, called the Spousal Support Advisory Guidelines (SSAG). The SSAG was developed by two family law professors and although it hasn’t been officially made into law, it is often used by judges and lawyers as a starting point to decide the quantum of Spousal Support.
In general, the SSAG has two variations, a “With Child” support formula, and a “Without Child” support formula. The Basic formulas are listed below but it is important to keep in mind that there are many exceptions allowed for under the guidelines and it is likely the Basic Formula will be modified when used in a real case.
The Basic With Child Support Formula for amount is:
- Determine both the Payor and the Recipients “Individual Net Disposable Income” (INDI) by accounting for Child Support, Spousal Support, taxes, credits, deductions, and government benefits.
- Combine both INDI’s and determine the range of Spousal Support that would leave the lower income Recipient Spouse with between 40% and 46% of the total INDI.
The Basic With Child Support Formula for duration is:
- Initial Orders tend to be “Indefinite” (duration not specified) and include allowances for reviews or variations
- Final Orders will come from a Range
- The Upper End of the Range is the longer of
- The length of the marriage, or
- The last child finishes high school
- The Lower End of the Range is the longer of
- One half the length of the marriage, of
- The youngest child starts full-time school
- The Upper End of the Range is the longer of
The Basic Without Child Support Formula for amount is:
- Calculate the difference in the Spouses gross incomes (Payors gross income minus Recipients gross income)
- Multiply the difference by 1.5% times the number of years of cohabitation (to a maximum of 50%). This is the Lower End of the Range
- Multiple the difference by 2% times the number of years of cohabitation (to a maximum of 50%). This is the Upper End of the Range.
The Basic Without Child Support Formula for duration is:
- The Upper End of the Range the number of years of cohabitation.
- The Lower End of the Range is half of the number of years of cohabitation.
- If the couple lived together for longer than 20 years the duration is indefinite
- If the couple lived together for more than 5 years, and the number of years of cohabitation plus the age of the Recipient Spouse is more than 65 (at the time of Separation), the duration is indefinite.
Spousal Support software uses these basic formulas and any applicable exceptions to generate “low”, “medium” and “high” options for Spousal Support. The Couple and their Lawyers, or the Court will use this Range to help determine the final Order.
Types of Orders
Spousal Support can be paid out in a variety of ways. The most common are “lump sum” and “periodical”. The main considerations to consider when deciding how Spousal Support should be paid is tax considerations. Periodic Spousal Support payments are tax deductible for the payor and taxable for the recipient. Lump sum payments are not taxable? There are also decisions to be made regarding the reviewability of Orders. Some Orders can be varied or changed if there is a “material change in circumstances” and the Order no longer makes sense. Other Orders have a review clause that allows the parties to look at the issue of Spousal Support again at some point in the future and make sure that the Order is still appropriate.
Spousal Support is much more complicated than Child Support due to the testing for entitlement and the existence of suggested guidelines rather than mandatory rules. Spousal Support is also often fought over because it is a direct payment to or from an ex and can be a constant emotional reminder of the relationship or the breakup. However, its often necessary to assist in a smooth transition from being part of a partnership to being self-sufficient and is therefore a necessary evil in a lot of family law cases.
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