Spousal Support

(ONGOING, RETROACTIVE & OWED IN ARREARS)

LIKE IT OR NOT, ENTITLEMENT & NEED DICTATE OBLIGATION TO PAY SPOUSAL SUPPORT.

At GDE FAMILY LAW, we understand the complex nature of spousal support. Spousal support is the payment from one spouse to the other following the breakdown of a marriage or common law relationship. Payments are commonly made monthly, but may be at other intervals or just one lump sum. Spousal Support is the term used for married couples, and is covered by the Divorce Act, RSC 1985, c 3 (2nd Supp) “Adult Interdependent Partner Support” is the term used for common law couples, and is covered by the Family Law Act, SA 2003, c F-4.5 and Adult Interdependent Relationships Act, SA 2002, c A-4.5.

The mere breakdown of a relationship does not necessarily mean that a spouse or common law partner is entitled to support. Entitlement usually arises from two types of situations:

Where the relationship created an income-earning disadvantage for a spouse, such as where one spouse’s career was put on hold for the other spouse or for the benefit of the family; or

Where there is a significant reduction in the standard of living of a spouse.

Entitlement or non-entitlement may also arise from a contract, such as Pre-Nuptial Contract, Separation Contract, or Minutes of Settlement.

Only after determining the issue of entitlement should a spouse consider how much (i.e. “quantum”) and how long (i.e. “duration”) support may be payable. There are many factors, including, but not limited to: (1) the length of the relationship; (2) the spouses respective domestic roles; (3) the effect of debts or other financial obligations; (4) other assets available to the spouses; (5) the impact of child support; (6) the spouses ages; (7) career or education plans; and (8) illness, disability, or other personal factors.

The Spousal Support Advisory Guidelines (the “S.S.A.G.”) assist in calculating support. The S.S.A.G. are not law similar to the Federal Child Support Guidelines; and care must be exercised when using them. Particularly, the S.S.A.G. do not address entitlement and there are different formulas depending on whether there are children. Because the S.S.A.G. are not law, even if a party is entitled to support a Judge does not have to follow the S.S.A.G. Support may be ordered within the range or outside the range. In Alberta, the analysis of support is extremely fact specific and Judges have the ultimate discretion of whether to award support, and if so, to set the quantum and duration.

Where support is payable there are many other issues to consider, including:

Lump sum spousal support is not tax deductible by the payor, and does not have to be claimed by the recipient.

Periodic spousal support payments must be reported on both spouses’ tax returns and is tax deductible for the payor and taxed in the hands of the recipient.

Spousal support may terminate on a specific date, at which time it may or may not be open to review depending on the wording of the Contract or Court Order.

Spousal support may be for an indefinite period, which means that it is payable for a undefined period and is open to review (including termination) at a later date.

The amount of spousal support may step down over time, or could be indexed to increase with inflation or by some other amount.

Sometimes, despite “best intentions” of the parties, problems can sometimes arise with the payment of spousal support. For example, there may be:

ONGOING SUPPORT PROBLEMS

Sometimes, it can be difficult to enforce support payments. We can help and get into place an Order that enforces support that is rightfully yours.

ARREARS

If you are owed spousal support payments, or if you owe payments, GDE FAMILY LAW can help you resolve the amount owed.

RETROACTIVE PAYMENTS

If there has been an error in calculating support, we can help you negotiate how to deal with the money that should have been paid as well as any interest owed.

GDE FAMILY LAW can help you to determine when a change in the support amount is needed, enforce ongoing spousal support contracts; and ensure that any difficulties with retroactive payments and arrears are handled in a way that respects everyone's rights and protects your financial situation.

This is a very brief overview and not intended as legal advice. Spousal support can be very different dependent on many factors. Despite what you may hear, it is not always as simple as using an online calculator to determine duration and quantum of spousal support.

At GDE FAMILY LAW, we have years of expertise in this sometimes complex area of the law. We are able to work with you to ensure the most optimal outcome available – and shall confirm you know your entitlement and responsibility.