Divorce Act – Spousal Support Factors and Objectives
The Divorce Act applies to married couples and provides direction to the court in making a spousal support order. The court is to take into consideration the condition, means, needs and other circumstances of each spouse. This consideration includes reviewing the following factors:
- The length of the marriage or period of cohabitation. The longer they were together, the longer the support.
- The financial means (including income, assets and debts) of both parties. The more need and the greater the ability to pay, the greater the support.
- The functions performed by each spouse during cohabitation. For example, if one spouse sacrificed their career to stay at home to care for the children on an understanding that the other spouse would provide for the family, the spouse that stayed at home may more likely be entitled to spousal support.
- Any order, agreement or arrangement relating to the support of either spouse. If the couple signed a pre-nuptial agreement purporting to set out the terms of spousal support to be paid upon a marriage breakdown, the court will take it into consideration.
- The parties ages, illness, disability, prior support obligations and other special circumstances of the parties.
The Divorce Act also sets out guidelines for the court when making a spousal support order. The order should:
- Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
- Apportion between the spouses any financial consequences arising from the care of children of the marriage, on top of child support obligations;
- Relieve economic hardship of the spouses arising from the breakdown of the marriage; and
- If practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
Common Law Spouses or Adult Interdependent Partners
The Family Law Act sets out similar factors and objectives to be taken into consideration when the court is asked to make a spousal support order in respect of common law spouses or adult interdependent partners. Before adult interdependent partners may apply for spousal support, they must have lived together in a marriage-like relationship of some permanence if there are children of the relationship. If there are no children of the relationship, then there is a further requirement that the partners have lived together in a relationship of interdependence for a continuous period of at least 3 years.
Spousal Support Advisory Guidelines
A set of Spousal Support Advisory Guidelines (SSAG) was published by the Federal Government. These guidelines are not binding and not mandatory, unlike the Federal Child Support Guidelines. The SSAG set out ranges of the amounts and duration of spousal support payments which may be payable based on factors such as length of cohabitation, the respective incomes of the spouses or partners, the number of children and time left before the children enter school full time and/or graduate from high school, and the ages of the respective spouses or partners.
Form of Spousal Support – periodic or lump sum or both
Spousal support can be either periodic, lump sum or a combination of both. Periodic spousal support is usually paid monthly and if it is paid pursuant to a written agreement or court order, then it is tax deductible by the payor and included in the taxable income of the recipient spouse. Lump sum spousal support has no tax impact to either party.
How to get support
You may apply for spousal support through the Alberta Courts, in which case a judge will decide whether spousal support is payable and in what amount and for how long it is to be paid. You may also negotiate and agree on whether spousal support is to be paid on your own, through your lawyer, or with the help of a mediator. Any agreement on spousal support outside of the Court should then be documented by a written and signed agreement.
Spousal support remains one of the most complex areas of family law and is determined by the specific facts and circumstances of your particular relationship or family.
We at Soby Boyden Lenz LLP encourage you to consult one of our family law lawyers to discuss your potential spousal support entitlement/obligation.
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