For the purpose of spousal support, a person is considered a spouse if they are married, have lived with another person in a marriage-like relationship for at least two continuous years, or share a child with the other person.
While being a “spouse” does permit you to make a claim for spousal support against your former spouse, it is important to understand that does not necessarily mean you are entitled to such payments. As such, while you can seek spousal support, depending on the circumstances, you may or may not ultimately receive payment from your former spouse. This is an important difference between child support and spousal support; that there is no presumptive entitlement to spousal support and that a spouse is not under any legal obligation to look out for the separated spouse’s legal interest.
Are you entitled to spousal support?
Let’s start by first breaking down the 3 different ways a spouse can possibly be entitled to spousal support:
- Contractual: Did you sign a cohabitation or marriage or pre-nuptial agreement that stated you would receive spousal support upon a relationship breakdown? If so, you are entitled to that spousal support, on a contractual basis. On the flip side, did you sign a cohabitation or marriage or pre-nuptial agreement that stated you would not receive spousal support upon a relationship breakdown? If so, you likely have negated the spouse’s obligation to provide you spousal support, but it is recommended that you have a lawyer review the executed agreement upon a separation to confirm what you may or may not be entitled to.
- Compensatory: Intended to provide compensation to a spouse for their efforts during the relationship which conferred an economic benefit on the other spouse, or an economic disadvantage on the spouse claiming spousal support. A prime example of this type of entitlement is that one spouse has stayed home throughout the marriage to care for the children, while the other spouse continued to work full-time. Upon a relationship breakdown, the working spouse will have a career with years of work experience and higher income earning potential than the stay-at-home spouse, who has lost out on those years of work experience and career growth, and whose income earning potential has been compromised into the future as a result. This is only one example of many that could lead to an entitlement on a compensatory ground.
- Non-Compensatory: Intended to provide compensation to assist financially through the decline in the spouse’s standard of living as a result of the separation. This type of spousal support is aimed at relieving economic hardship and promoting self-sufficiency within a reasonable period post separation. Note that mere disparity in your income as opposed to the other spouse’s income is not sufficient to create this entitlement; you must also show that your standard of living post separation is not only much lower that standard that was usual during the relationship, but also that it is much lower than your spouse’s standard of living post separation.
If you are entitled – how much money will you get, and for how long?
These are somewhat complex and highly contextual questions for which whole chapters of books could be written. For the purposes of this article, we will simply provide a very high-level answer. Each case must ultimately be assessed on a case-by-case basis, and it is strongly recommended that you speak with a lawyer to ensure you fully understand where your entitlement may lie.
To determine how much spousal support is payable, and for how long, we look to the Spousal Support Advisory Guidelines (“SSAG”). This will provide lawyers and judges with a guide as to how much should possibly be paid and for how long. However, it is important to note that the SSAG are guidelines only, and are not mandatory. That means you could end up with a result outside of what is being proposed by the SSAG calculations, both in terms of the amount and/or the duration (whether less or more than the SSAG suggests).
The SSAG will provide a range of potential payment amounts that should be made per month based on both parties’ total incomes and whether child support is payable, from low, to medium, to high ranges. Where your payment will ultimately end up among those ranges (or whether you will fall outside of the ranges) can depend on and be influenced by a number of factors, including the strength of the entitlement, each spouse’s needs and capacity to pay, and the parenting schedule if children are involved. In essence, a highly holistic analysis must be conducted to determine where you should land among the figures presented by the SSAG. Again, this article does not intend to unpack all the possible complexities, but it is highly that recommended you seek legal advice to understand how all this information might apply to your situation.
To determine how long spousal support is payable, factors such as the age of the person seeking spousal support, the length of the relationship and whether there are children involved, all become relevant and affect the duration presented by the SSAG. In broad terms, the duration suggested in a relationship without children is typically a minimum of half the length of the relationship up to a maximum of the entire length of the relationship, unless the relationship was over 20 years in which case the duration is indefinite. Indefinite typically means that no end date is specified in the order or agreement, and that the spousal support payments will be subject a review or variation at a later time (most commonly, for example, upon retirement of the paying spouse). For relationships over 5 years in length, where the recipient’s age plus the length of the relationship, equals 65 or more, the duration may also be indefinite.
On the other hand, where there are children (and again, in broad terms) the ranges will either be similar to those in relationships without children, or, where the period of time until the youngest child finishes high school is greater than the length of the marriage, the minimum duration may extend to when the youngest child starts high school, and the maximum duration may go to when the youngest child finishes high school.
Final Note: Speak with a lawyer at Connect Family Law to better understand what you may or may not be entitled to when it comes to spousal support.
