HOW MUCH SPOUSAL SUPPORT AM I ENTITLED TO FROM MY SPOUSE?
Under the law, every spouse – married or common-law – has a duty to be self-sufficient, but sometimes that just is not possible. When a couple separates or divorces, one spouse may be eligible to receive financial support from the other. This is called spousal support (sometimes also called alimony or spousal maintenance), and is separate and distinct from child support.
Many couples going through a separation or divorce are able to come to a fair agreement about spousal support without going to court. The agreement usually forms part of a larger separation agreement that covers other issues such as child support, child custody, or the division of property. But if you have to go to court to have a judge decide spousal support for you, the judge will look at a number of factors in making a decision about who should pay, how much they should pay, and for how long.
Common-law Spouses
Provinces have different rules regarding entitlement to common-law spousal maintenance. It is critically important that you find out from a lawyer or other legal expert the answers to two questions:
1. In your province, how long must you have lived with your spouse before you become entitled to spousal maintenance? In British Columbia the requirement is two years.
2. Many provinces have a limitation period in which a common-law spouse must apply for spousal support. In British Columbia, it is one year after the date of separation.
If you miss entitlement based on not having lived together long enough or because you have not applied in time, you may find yourself without any spousal support entitlement. Before entering into any common-law relationship, both parties should be aware of the law and rules that apply in their provincial jurisdiction.
Married Spouses
If you are married it is a whole different matter, as both provincial legislation, and federal legislation in the Divorce Act, provide for and govern spousal maintenance entitlement.
Historically, there was a large measure of uncertainty as to quantum and duration of spousal support. Early in 2005, the federal government released a major research paper and policy document of spousal maintenance guidelines regarding how much spousal maintenance should be. The guidelines are not binding, but it appears that both lawyers and judges are following these guidelines. The federal government report can be accessed on-line at: http://www.justice.gc.ca/eng/pi/fcy-fea/spo-epo/index.html
Long-term marriages will now result, in most cases, in long-term and possibly lifetime spousal support obligations. As is explained in the Spousal Support Advisory Guidelines, “The idea that explains this formula is merger over time: as a marriage lengthens, spouses more deeply merge their economic and non-economic lives, with each spouse making countless decisions to mould his or her skills, behaviours and finances around those of the other spouse. The gross income difference measures their differential loss of the marital standard of living at the end of the marriage. The formulas for both amount and duration reflect the idea that the longer the marriage, the more the lower income spouse should be protected against such a differential loss.”
For short-term marriages, spousal maintenance is now modest in both quantum and duration barring major exceptions such as cases involving illness and disability.
In medium-term marriages, spousal maintenance is now something that can be calculated both in terms of quantum and duration, and give some idea to each partner what their entitlement or obligation may be upon marriage breakdown.
For very long marriages, or marriages that are medium length but the recipient is in their late 50s or early 60s, separate rules apply.
The guidelines now provide a framework for discussing and negotiating the settlement of the entitlement and obligation of each spouse in a relationship. It is no longer as uncertain as it was previously and will help immensely in allowing spouses to understand what the upper and lower ranges of their spousal support obligations and entitlements will be. The actual amounts are subject to negotiation and discussion.
Guidelines Formulae
There are two main formulae that fall under the headings “without children” and “with children.” The formulae for both amount and duration reflect the idea that the longer the marriage, the more the lower income spouse should be protected against such a differential loss. These formulae do not distinguish between common-law and marriage. They use only “period of cohabitation.” (The actual formulae are too complicated for an article of this length. You should consult a lawyer about your particular circumstances.)
Without Children Formula
In situations where there are no children involved or the children are all grown up and no longer dependent, it is now possible to get an idea of an upper and lower range of an amount per month and a duration over years of how much a separated spouse is entitled to after marriage breakdown. The difference in gross taxable incomes is an important ingredient of the calculations.
With Children Formula
When children are involved, the calculations are much more complicated and are based on a somewhat different formula. The impact of child support payments on each parent’s budget and their after-tax/net disposable income status is factored into the formula prior to calculating the amount a spouse would be entitled to. Many lawyers use a computer program to calculate the application of the formula to the unique circumstances of their clients. It is best to check with a lawyer or a legal advice service prior to making any decisions around spousal maintenance.
All cases should involve, to the extent necessary and/or possible, mediation and negotiation. Court applications are a last resort.