Spousal Support FAQs
Spousal support is not an automatic right associated with a breakdown of the marriage. Your spouse may be entitled to support if he or she can demonstrate one or more of the following: financial need arising from the marriage or its breakdown, an entitlement to compensation for the economic consequences of the marriage, or a contract between the two of you that sets out a support obligation on your part. See Who is Eligible for Spousal Support for more information.
Spousal support is not restricted to married parties. The Family Law Act Part 3, which governs support obligations for unmarried spouses, or married spouses who are not pursuing a divorce, defines “spouse” as including cohabiting couples who have lived together for a period of at least three years, and cohabiting biological or adoptive parents.
Once entitlement has been established, the court will consider the appropriate amount and duration of support, generally in line with the Spousal Support Advisory Guidelines. See Calculating Spousal Support for more information on how the amount and duration of support will be determined.
The Spousal Support Advisory Guidelines serve as a starting point for quantum and duration of support. Instead of generating a definitive number, the Spousal Support Advisory Guideline formulas provide ranges for both support amount and duration. A court can choose to follow the guidelines or depart from them in any particular case. The Guidelines will provide a range and duration for monthly support payments, but spouses are also free to negotiate (and the court has discretion to order) an equivalent lump sum payment instead.
The Guidelines are largely based on the length of cohabitation (married or common law). For married spouses, the formula contemplates time spent cohabiting before and during marriage. There are two basic formulas used to calculate spousal support: the With Child Support formula, and the Without Child Support formula, depending on whether the payor will be paying spousal support in combination with child support.
See Calculating Spousal Support for more information.
If your spousal support obligation is the result of a court order or an agreement filed with the court, you will have to bring a Motion to Change in order to vary your support. There are two ways in which this can be done:
- As a Consent Motion to Change, if you and your spouse both consent to the change, or
- As a Motion to Change without Consent, if your spouse does not agree to the change.
In order to persuade the court to vary (or change) an existing order or agreement, you must show that there has been a material change: a change in the condition, means, needs or other circumstances of either former spouse since the making of the spousal support order.
If you have lost your job or have had your hours drastically reduced, this may constitute a material change, provided this event was unforeseen at the time of the original support order, and the loss of employment affects your ability to pay support.
See the article Changing Spousal Support for more information on the law in this area, and what constitutes a material change in circumstances. See the Spousal Support Forms section for information about how to bring a Motion to Change.
No. Spousal support arrangements can be made by way of a separation agreement. If parties are unable to come to an agreement by negotiation, there are other ways to resolve disputes surrounding support. Parties may negotiate with the assistance of qualified family law lawyers either by correspondence or in four way joint meetings, or parties may choose to collaborate or participate in mediation as alternatives to court. Alternative methods for resolving disputes are often faster and less expensive than the traditional litigation approach.
In general, spousal support is treated as taxable income for the recipient and as a tax deduction for the payor. In order for spousal support payments to be considered taxable and deductible, they must be:
- Paid on a regular and period basis;
- Written in a court order or domestic contract such as a separation agreement; and
- Paid to the former spouse (not to a third party, such as mortgage company).
Spousal support paid as a lump sum (a one-time transfer) is not taxable or deductible. For example, if the payor wishes to establish a “clean break” and pay the entire spousal support obligation outright (instead of periodically,) the payor would not realize the tax deduction and the recipient would not claim the payment as taxable income.
Determining whether to use a lump sum or periodic payment schedule can have significant tax consequences for both parties, it is best to consult a lawyer or accountant before committing to any particular support schedule.
For post separation families without children, support duration ranges from one-half to one year of support for each year of marriage (or cohabitation), with duration becoming indefinite after twenty years of marriage. Since one of the factors in determining a spousal support entitlement is age, the Spousal Support Advisory Guidelines suggest indefinite support if the marriage has lasted five years or longer and the years married added to the support recipient’s age at separation total 65 or more. This reflects the diminished earning capacity of separating parties as they reach retirement age.
For post separation families with children, factors impacting support duration include length of marriage, the time remaining until the youngest child of the marriage completes high school, and the age of the recipient (particularly those nearing retirement).