Facts About Spousal Support

What is Spousal Support and How is Eligibility Determined?

Spousal support exists to compensate the spouse with a lower income or assets who may have made sacrifices such as working less, rejecting opportunities to advance their career or staying home to raise the children. It also serves to relieve financial hardship on the spouse with a lower income until he or she is self-supporting.

Spousal support is payable if you were married or if you were common-law spouses (living together for at least 3 years or for any length of time if you shared a child and the relationship had “some permanence”). Moreover, a court will look at whether you are financially self-sufficient, whether you maintained your career during your relationship and your income/assets in relation to your former spouse.

Process of Obtaining Spousal Support

There are three primary means to obtain spousal support. The most common way is to negotiate and enter into a separation agreement that dictates the amount and length of time

spousal support payable. It’s important to consult a lawyer before entering a separation agreement as the agreement can limit what you may later obtain in court. A lawyer can ensure you are not agreeing to waive any or your legal rights.

Second, a private third party such as a mediator or arbitrator can help you and your former spouse reach a decision.

Finally, the spouse seeking support can start an application in court and a judge can decide the terms of any support ordered.

Spousal Support Calculation

Lawyers and Judges use the Spousal Support Advisory Guidelines (SSAGs) as a reference point to assess how much spousal support is warranted. The Guidelines provide formulas where child support is also sought and where child support is not sought in addition to spousal support. However, the SSAGs are only a guideline for the Court and a Court may find that the SSAGs do not apply in your case and may award or vary the spousal support based on other factors.

A Judge will consider circumstances such as the recipient’s needs and the payor’s ability to pay, the length of the relationship, the ages of the spouses, the arrangements for children and the financial situation of each spouse. There are exceptions to the SSAGs such as illness/disability, prior support obligations and financial hardship and high income levels.

Length of Spousal Support

The SSAGs will produce a recommended period for payment of spousal support. It should be brought to the attention of your lawyer if a spouse performed functions during cohabitation that warrant compensation (e.g., gave up career to care for the children).

Any period of cohabitation that occurred before marriage should also be brought to the attention of your lawyer. A claim for retroactive spousal support can also be made if there have been no spousal support payments made for some time following the separation.

When spousal support is negotiated, or determined by a Judge, the above-mentioned factors will be considered in accordance with the SSAGs to determine the length of spousal support to roughly estimate when the recipient will be self-sufficient. The Judge will commonly order a review date or otherwise a termination date for spousal support.

Receiving & Enforcing Spousal Support

Usually, spousal support is paid monthly, but it may also be paid in a one-time lump sum. Where the payor fails to pay spousal support made under a Court Order or a court-filed Separation Agreement, the Family Responsibility Office (FRO) can take steps to collect payments such as garnishing payments directly from the payor’s employer or filing writs of seizure and sale against his or her property, suspending pilot’s licenses, driver’s licenses, boating licenses, etc. until payment has been made. 

Changing Spousal Support

You can change an existing order for spousal support if you sign a new agreement that is witnessed and dated by both spouses and file it with the Court. If you and your former spouse do not agree that a new amount should be ordered, you must bring a motion to change spousal support and the Court will decide whether you are entitled to a change. The Court will consider circumstances such as whether either party’s income has increased or decreased or if the child arrangements have changed.

Contact C. Richard Buck for a Divorce Lawyer in Waterloo or Kitchener

Retaining a family lawyer early in the process can help you negotiate a fair separation agreement and/or win a fair spousal support award in Court. C. Richard Buck is an experienced divorce lawyer serving Kitchener, Waterloo and the surrounding areas in Southwestern Ontario (Kingston to the East, Simcoe/Niagara to the South, Parry Sound to the North and Windsor to the East). He can protect your legal interests and answer any questions you may have about divorce. Call for a legal consultation today at 519-579-3400.

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