This post is presented by J.Donovan Law Group

Whether two people are married or not, one may be obligated to pay support to the other.  Our American friends call this “alimony”.  In Canada, we call it “spousal support”.

Spousal support is quite unlike child support.  Child support is determined, in most cases, pursuant to a table amount based on the annual income of the payor and number of children to support.  Spousal support is not based on a table.  The spouse who wants it must prove entitlement; in other words, do you qualify for support from your former partner? That is up to the Judge if the parties do not agree.

If the parties do not agree, and they bring the issue to a Judge to decide, the Judge will look at things like: how long were the parties together? Does one spouse make more money than the other? Did one spouse stay home and raise the children while the other went to work? Is one spouse better off than the other because the other supported his or her career? Is one spouse ill and unable to work? What is the financial means of the spouses? Does the spouse who is being asked to pay spousal support have the extra money or means to pay?

The analysis is very fact driven and one would be quite wise to seek legal advice on this topic.  Long term relationships, meaning 15+ years together, with one spouse dependent on the other to financially survive tend to have entitlement out of the gate.  Entitlement for middle age or elderly spouses who separate after a traditional marriage, meaning mom stayed home and raised the kids and dad worked to support the family, is quite easily established or agreed between lawyers early on in the file.   

Once entitlement is established, the next question to answer is how much should the payor pay? Most lawyers have Divorcemate software in their offices that do the calculations for the spouses.  The software takes the information of the spouses: their ages, dates of birth, children’s names and ages, custodial arrangements, incomes of the spouses and length of time together, and provides three numbers: low end, mid-range and high end monthly amounts for spousal support. 

Such numbers are not the end all be all but the Court will seriously consider them and very highly likely apply one of them.

Spousal support paid periodically; for example, per month, is taxable in the hands of the spouse who receives it and deducible on the payor’s income tax return.  Always seek accounting advice in this area.

Spousal support is paid on top of child support.  However, if the Court finds the spouse being asked to pay it cannot afford to pay, then the Court may order that spousal support is not payable – the spouse may be entitled to receive it – but if the other spouse cannot pay, then the Court may dismiss or not make an Order for it.  Such can be a devastating finding for the spouse who wants it and is in need of it.

Regardless of the spouses, their backgrounds or history, in every single case involving spousal support, the Court must assess the dependent spouse’s duty and ability to become self-sufficient, meaning able to care for herself/himself.  Spousal support is not always indefinite, meaning forever or payable without an end date, and the spouse receiving should expect it to end at some point.  The Court will expect, in most cases, that the spouse receiving will do what they can to not have to need it and be able to support themselves.

Young spouses or spouses that are both educated, make similar incomes and have careers, with or without children, typically are found not entitled to spousal support.

The obligation to pay spousal support may arise at the date of separation.  So, like in my earlier article on child support and retroactive child support, if a spouse refuses to pay spousal support and should have been paying, the Court has authority to issue an Order retroactive to the date of separation or such other date.  Again, seeking legal advice is critical.

All for now,

Jennifer 

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