Who has to pay alimony? How much and for how long?

If you are going through a divorce or separation, you may be wondering if you will be entitled to receive, or required to pay, spousal support. 

Spousal support is often ordered in situations where one spouse earns significantly more than the other, or where one spouse has been out of the workforce during the marriage (usually raising children). 

Spousal support can be a complex area of law.  If you have questions about your right to receive, or your obligation to pay, spousal support, contact an experienced family law lawyer in your area.  One of our lawyers will be glad to guide you through the process.

What is spousal support?

Spousal support is generally a monthly payment made from one spouse to the other to help support the spouse in need through the transition from marriage to independence. 

Spousal support recognizes that people in a relationship structure their lives to the maximum benefit of the family unit, rather than to their own personal benefit.  When that family unit dissolves, there is often one spouse who bears the financial brunt of those changes.

In rare circumstances, the court will order that spousal support be paid in a lump sum.  In some cases spouses will agree that spousal support be paid in a lump sum, for example, out of the sale proceeds of an asset. 

So what is alimony? The alimony definition is the same as that of spousal support.  The term alimony is generally used in the United States.  In Canada, we use the terms spousal support or spousal maintenance. 

Our experienced spousal support and alimony lawyers can answer all of your support-related questions.

Who is entitled to receive spousal support?

Not every separating couple will result in an order for spousal support.  Whether you are entitled to spousal support will depend on the particulars of your situation.  Spousal support is often ordered when one spouse:

• Earns a significantly higher income than the other spouse.
• Has been economically disadvantaged by the marriage or the separation, for example, they have stayed home to raise the children instead of building a career and learning job skills.
• Has a reduced earning capacity due to familial obligations, such as child care obligations.
• Has a need for support that the court decides should be fulfilled by the spouse.  This need may or may not be related to the marriage or its breakdown.  For example, an ill spouse may qualify for spousal support even though the illness has no relation to the other spouse or to the relationship. 

The court is more likely to order spousal support after the breakdown of a longer relationship.  There is a presumption that spouses are entitled to continue to enjoy approximately equivalent standards of living after the breakdown of a longer marriage.  Generally, anything over 20 years is considered a “long” marriage. 

Entitlement to spousal support is not always easy to predict.  A family law lawyer in your area can help you to determine if you are entitled to receive spousal support from your spouse. 

How is spousal support calculated?

Before 2005, spousal support awards across the country were erratic.  It was impossible to determine the amount of spousal support that a court would order.  This also made it hard for spouses to agree to a spousal support award.  

Since 2005, the Spousal Support Advisory Guidelines have been released.

The Spousal Support Advisory Guidelines set out a rather complex formula that calculates a range within which spousal support should fall.  Most people, including lawyers, use specialized computer software to calculate spousal support amounts using the guidelines.  These spousal support calculators require the input of numerous criteria including:

• Income of each spouse.
• Age of the spouses.
• Length of the marriage.
• Number of children.
• Ages of the children.
• The children’s living situation (whether they reside with the payor spouse, the recipient spouse or both).
• Whether child support is being paid according to the Child Support Guidelines.

All of these factors will affect the amount of spousal support that the guidelines recommend, as well as the recommended duration for which spousal support should be paid. 

Our family law lawyers have specialized alimony calculators that can determine the range of spousal support to which you may be entitled, or which you may be required to pay.

How are the Spousal Support Advisory Guidelines applied?

Unlike the Child Support Guidelines, the spousal support guidelines are advisory only.  It is not mandatory for the courts to order spousal support within the range determined by the guidelines in every case.  However, the courts in most provinces have embraced the Spousal Support Advisory Guidelines and many appellate level courts have indicated that the guidelines should be followed unless a court provides a good reason why they should not be followed in a particular case. 

Are there exceptions to the Spousal Support Advisory Guidelines?

The people who created the formula have acknowledged that there are certain “exceptions” where the formula does not always provide a reasonable or fair result.  These exceptions include:

• Where the payor’s income is above $300,000 per year.
• Where the payor earns less than $20,000 per year.
• Where the payor takes responsibility for paying a significant family debt.
• Where the recipient is ill or disabled and the high-end of the range provides insufficient support.
• Where the payor spouse has prior support obligations.
• Where there is a child with special needs.
• Where there is a need to compensate a recipient spouse after a shorter marriage with no children.

An experienced family law lawyer can help you determine if you fall into one of these exceptions or if the Spousal Support Advisory Guidelines will be applied in your case.

When will my alimony payments end?

The Spousal Support Advisory Guidelines calculate both the amount and duration of monthly spousal support payments and these two values are related.  In fact, the guidelines permit restructuring.  Restructuring involves lowering the amount of monthly support payments but ordering support for an increased amount of time, or increasing the amount of monthly support payments and decreasing the duration.  The idea behind restructuring is that it does not alter the total amount of support paid by one spouse to the other. 

The duration of spousal support payments is based on the length of the marriage; generally, support should be paid for 0.5 – 1 year for each year of marriage.  For longer marriages, over 20 years, the guidelines will recommend that spousal support be paid on an indefinite basis.  Indefinite does not mean forever.  It simply means that the court will not pre-determine the end date at the time of separation. 

Common-law spousal support.

Both common-law and married spouses can apply for and receive spousal support.  In some provinces, there may be time limits placed on when a common-law spouse can apply for spousal support so be sure to consult a lawyer as soon as possible after your separation.

Will I be taxed on my spousal support payments?

Unlike child support, spousal support is generally deducted from the payor’s income and included in the recipient’s income for income tax purposes.  In many cases this benefits both spouses, resulting in a greater net income for each of them. 

The Canada Revenue Agency will assume that any unspecified monthly payments are child support, so make sure that your court order or separation agreement clearly indicates the amount of monthly spousal support that you will be paying. 

Your lawyer will help you to understand the complexities of spousal support laws.

Being aware of your rights and obligations when it comes to spousal support is the first step.  Your lawyer will answer all of your questions about:

• Eligibility for spousal support.
• Amount of spousal support.
• Duration of spousal support.

Your lawyer will also use the Spousal Support Advisory Guidelines to provide you with an estimated range that the court would use to make a spousal support order in your case.  This may enable you and your spouse to come to an agreement with respect to spousal support.  Contact one of our lawyers today to verify your rights and obligations.