This column is submitted by Fall River Law
Spousal support can be a really hard thing to talk about in the separation and/or divorce process. People are generally willing to pay child support because it is for the kids. But that willingness doesn’t always extend to spousal support. We hear a lot, “well I am not giving him anything,” or “my buddy got divorced last year and only pays x amount, so that is all that I am willing to pay” or “I’ll only pay what a judge tells me to pay.”
In the case of Spousal Support especially, every situation is different. So just because you have a relative or friend that pays or gets paid spousal support, doesn’t mean that you will to. But, there are some guideposts that I can share with you about the situation where spousal support might be paid.
Bottom line is that there needs to have been one partner or spouse who was financially disadvantaged as a result of the marriage, and the other partner or spouse benefitted off of the other’s disadvantage. The simplest way to break this down is to look at what I am going to refer to as a “traditional” marriage where the husband works and the wife does the work at home to keep the house and family going. In this situation the wife is not making an income and is therefore disadvantaged, whereas the husband is able to take advantage of the wife’s childcare so that he is able to work himself. So essentially here the wife did not have the opportunity to work outside of the house because of the role she played in the marriage. On the other side of the spectrum is a couple who both worked and had similar incomes and neither lost a work opportunity, in that case it is very unlikely that spousal support will be paid.
Obviously every marriage and roles within that relationship is different but it is the give and take that we look at- where one partner or spouse’s giving leave them in a financially disadvantaged circumstance and the other benefits from the give there may be a claim for spousal support to compensate for that disadvantage.
There is another type of spousal support that is based out of need, rather than compensation. The basic idea is that where one party is unable to meet their needs after a separation, it should be the former spouse that financially supports that party rather than the government. This type of spousal support is meant to balance financial disparities between the parties for a time after the separation.
When considering the question of spousal support we look at the “financial needs and circumstances”. The circumstances that are considered include the length of the marriage, so the longer the marriage the stronger a claim for spousal support.
We look at the incomes of both partners, but it is important to remember that just because one partner make significantly more than the other does not mean an automatic claim for spousal support. The roles that each played within the marriage is looked at to see if there was a disadvantage and subsequent advantage of the other partner.
Lastly, the ongoing childcare are also considered- meaning that if one partner is going to continue caring for the children then they may be entitled to spousal support above the child support that they will already receive.
Once the “if” there is entitlement to spousal support is decided, the next question is the “how’s” – how much and for how long. Spousal support is not necessarily forever. The partner who receives the support is required to work to become self-sufficient while receiving the support. Once the partner reaches self-sufficiency the spousal support stops. Each circumstance is different and so the amount of time that it takes to reach self-sufficiency is different.
For instance, someone coming out of that traditional marriage may be nearing 60-years-old and has not had a job for the past 30 years may never find self-sufficiency, nor should they be required to at such a late time in life.
Budgets of living in two separate homes will have to be made to help determine how much spousal support is needed. Spousal support is tax deductible by those who pay it and is taxable for those that receive it. So when looking at the amount of spousal support to be paid it is a good idea to take a look at the tax consequences, especially when the partner paying tax is in a higher tax bracket.
There are Guidelines for Spousal Support in Nova Scotia. These guidelines can computer generate a range to give you an idea of the how long and how much spousal support should be paid. But these are guidelines and not rules or laws like the child support tables. This means that they are not always used by every judge. They are just another tool that may help separating spouses.
I hope that you can see with so many moving parts in the consideration of spousal support that independent legal advice is essential before coming to any agreement.
I always would advise going to a collaboratively-trained lawyer because we have collaborative colleagues who are financial professionals specially trained with arranging finances for the transition into two homes.
Making an agreement outside of court through kitchen-table conversation with independent legal advice, collaborative law or mediation are, in my humble opinion, the most successful because you are able to tailor the spousal support to each of your needs and incomes and possibly take advantage of the tax consequences of spousal support.
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