Spousal support is a complicated area in family law and an issue that is at the forefront of many people’s minds when married or common law spouses separate.
The ultimate purpose of spousal support is to provide a more equal distribution of the economic consequences that spouses experience due to the dynamics of a relationship. Usually, a spouse may experience economic disadvantages due to taking on more domestic responsibilities while the other spouse reaps the economic advantages of having more time to focus on work.
While the disadvantaged spouse is expected to make efforts at economic self-sufficiency within reasonable time, this is only one of the goals of family law legislation.
Spousal support entitlement may be needs-based, compensatory, or contractual.
If a spouse has unmet financial needs, this provides a needs basis for entitlement to spousal support.
If a spouse has not been working for a period of time due to the relationship and there is an inequality in the earning powers of the spouses, there is likely a compensatory basis for entitlement to spousal support.
Contractual basis may include spousal support agreed upon in a valid marriage contract or separation agreement signed between the parties.
A few factors that affect entitlement of spousal support include the length of the relationship, whether one of the spouses has an illness or physical disability, whether there are young children of the relationship, whether there is significant income disparity between the spouses, and the existence of any contractual agreements between the spouses.
Generally, the longer a relationship is the more likely spousal support would be paid to the lower-income spouse due to the theory that couples become more financially intertwined over time and there is likely more economic dependency in a long relationship.
However, even if the relationship were short, if a spouse is disabled or ill, it is likely that the need would create an entitlement to spousal support even. Furthermore, even in a short relationship, if one of the spouses is the primary caregiver for a young child of the relationship, the burden of child-caring responsibilities will create economic disadvantages, which create an entitlement for spousal support.
If there is significant income disparity between the spouses, then the lower earning spouse may be entitled to transitional spousal support even where there are no children.
Sometimes couples will have an agreement such as a cohabitation agreement, marriage contract or a separation agreement. However, there is a possibility that these agreements may be set aside in certain circumstances.
In an effort to achieve more certainty and consistency in this area, the Spousal Support Advisory Guidelines (“SSAG”) was established in 2008. The SSAGs is a tool to produce an initial calculation of the amount and duration of spousal support to be paid after entitlement has been established.
The SSAGs, however, only provide a starting point. The factors considered in this article also impact the amount and duration of spousal support to be paid. A longer relationship, for example, would likely result in spousal support being paid for a longer period of time, perhaps even for an indefinite duration.
Spousal support is very dependent on the specific circumstances of each separating couple and therefore remains a tricky area that spouses should navigate with the guidance of legal counsel.