Spousal support is a term frequently used, but just as often misunderstood or misapplied. Let’s break down a couple of common misconceptions:
- Myth #1: Spousal support and child support are the same thing.
Spousal support is completely distinct from child support. Child support is strictly calculated to cover a child’s basic needs and is a matter of public order, meaning it cannot be reduced or waived, regardless of whether the parents were married, how long they were together, or whether they have contact with the child. - Myth #2: The wealthier spouse always pays spousal support after divorce.
Not always. While income may play a role, spousal support is not automatic. The Divorce Act sets out specific factors that guide the court in determining whether spousal support is appropriate. - Myth #3: Spousal support is guaranteed for life.
Not true. Spousal support is not necessarily permanent.
Who can claim spousal support?
Spousal support is available only to legally married spouses or those in a civil union.
In Quebec, common-law couples, including those under the new parental union regime, do not have the right to claim spousal support, regardless of the length of the relationship or whether they have children together.
However, couples in such relationships can protect themselves by entering into a cohabitation agreement. This private contract allows them to set out their mutual obligations during the relationship and in the event of separation, including provisions for support payments if they choose to include them.
How is spousal support requested?
Spousal support is not automatically granted by the court. It must be specifically requested during the divorce proceedings by the spouse who believes they are entitled to it.
To support the claim, that spouse must also complete Form III, a detailed financial statement that outlines their income, expenses, assets, and liabilities. This form is used to provide the court with a clear picture of the spouse’s financial situation and must be sworn before a commissioner of oaths to be valid.
How does the court decide on spousal support?
The court doesn’t just look at who earns more. It considers the overall financial situation, needs, and circumstances of both spouses. Some of the key things it takes into account include:
- How long the couple was married;
- What roles each person had during the marriage (for example, if one stayed home to raise children);
- And, whether there’s already an agreement or arrangement in place about support.
The goal isn’t just to divide money, it’s to be fair. The court tries to make sure that spousal support:
- Recognizes any financial unfairness caused by the marriage or the divorce;
- Shares the financial impact of raising children (beyond child support);
- Helps ease any financial hardship that one spouse might face after the breakup;
- And, when possible, helps each spouse become financially independent within a reasonable time (A spouse who claims spousal support is expected to make reasonable efforts to become financially independent within a reasonable period of time).
It’s important to note that spousal support is not awarded as a punishment or reward for behavior during the marriage. Under the law, spousal misconduct, such as adultery or other personal wrongdoing, is not a factor the court considers when deciding whether spousal support should be granted.
What are some modalities to spousal support?
Spousal can take different forms depending on the situation and needs of the parties involved.
When asked and needed, spousal support can begin with an interim order, which is a temporary support arrangement put in place while the parties wait for the final court decision.
Spousal support can be ordered in two main forms:
- As periodic payments, such as monthly installments, or;
- As a lump sum payment made all at once.
From a tax perspective:
- Periodic spousal support payments are tax-deductible for the person who pays them and considered taxable income for the person receiving them;
- In contrast, lump sum payments are neither deductible nor taxable.
When the court assesses the paying spouse’s financial capacity, it will always prioritize child support over spousal support. This means that spousal support may be adjusted or limited depending on the amount already allocated to support any children.
What is the payment amount for spousal support?
Every case is unique. Whether a spouse is entitled to receive spousal support, how much support should be paid, for how long, and under what conditions will all depend on the specific facts of your situation. That’s why it’s essential to consult a lawyer who can assess your case and guide you through the legal process with clarity and precision.
At Spunt & Carin, when advising you on your rights during a divorce, we will carefully assess your eligibility for spousal support based on your specific circumstances. If spousal support is appropriate, we ensure that all necessary documentation is properly prepared to support your claim and strengthen your case.
