Chapter 3: How Does Spousal Support Work?
When a couple divorces, the spouse with the higher income sometimes pays money to help support the spouse with the lower income. This is called "spousal support".
The entitlement to spousal support, the amount, and duration of payments depends on a variety of factors, including:
- The length of your relationship
- The income earning potential of each person
- Roles during the relationship
- Health of each person
- Economic impact of the separation on each person
- The property of each party
- Age of each spouse
- If children are still at home
If you and your spouse earn a similar income, your relationship lasted less than 5 years, you don’t have any children and you are both healthy, there would likely be no spousal support owed by either of you.
If you are 55-years-old, suffering from poor health, you were the primary caregiver of the children and never returned to the paid workforce, whereas your spouse earns $100,000 per year, you would have a right to spousal support.
These are obvious examples of when spousal support is owed and when it is not owed. The vast majority of cases lay somewhere in between the two examples described above.
If there is an entitlement, the next question is the amount of spousal support to be paid. The Spousal Support Advisory Guidelines (SSAG) is helpful in determining the range of spousal support to be awarded. The SSAG is a series of complicated formulas that predict the likely outcome of an application to court for spousal support. The SSAG are not legally binding because they are not included in legislation. They are simply a tool used to predict what a judge might do. In most cases, judges follow the SSAG.
Ten important facts about Spousal Support:
- Before determining the amount of spousal support to be paid, first determine the amount of child support.
- Spousal support that is paid monthly is tax deductible for the person paying it and the recipient must pay taxes on it as if it was income.
- A lump sum of spousal support can be paid instead of monthly payments.
- Lump sum payments of spousal support are not tax deductible so this needs to be taken into consideration when determining the amount. Generally, spousal support is paid somewhere between 1 year for every 2 years of relationship to a maximum of 1 year for every 1 year of relationship. So, depending on your circumstances, if you have been married 10 years you might receive spousal support for between 5 to 10 years.
- If you have been married for more than 20 years, the potential for spousal support will always exist.
- If the recipient’s age plus the years of marriage exceed 65, then spousal support may be payable forever.
- Common law partners can seek spousal support, but only if the relationship lasted more than 3 years or you had a child together.
- The recipient of spousal support has an obligation to use their best efforts to become economically self-sufficient as long as it is practical to do so. If they do not, it is possible for an income to be allocated to them and the amount of spousal support is accordingly decreased.
- The payor of spousal support cannot quit a job or become voluntarily under-employed to avoid paying spousal support. Spousal support is paid based on the realistic potential to earn income even if you choose to do otherwise.
- Spousal support is complicated. A qualified lawyer can help you negotiate a reasonable settlement using the Collaborative Process.
