Spousal support is one of the most difficult and unpredictable issues in family law. Part of the reason for this is the contradictory nature of the law. It is both too broad and too specific.
The Divorce Act has very broad rules for the Judges to
follow when ordering spousal support. The Act says the amount is to be a periodic
or lump sum amount “as the court thinks is reasonable.” Needless to say, it is
a challenge to guess at what a Judge might consider “reasonable”.
The Divorce Act tells the Judges to consider the “means,
needs and other circumstances of each spouse”. The other circumstances
mentioned are the length of the marriage, the functions performed by the spouses
during the marriage and any orders or agreements in existence.
Lawyers can help the spouses summarize their income and
monthly expenses, but the variety of “other circumstances” arising during the
marriage and after which can be presented at a trial are endless. Each family
and each marriage are unique, making it very hard to predict what a Judge might
decide is reasonable after reviewing all of the evidence.
In contrast to the very broad law in the Divorce Act, there
are also Spousal Support Advisory Guidelines. These are formulas that give lawyers
and Judges an idea as to what exact spousal support amounts will allow for an
equal sharing of the net disposable income of the spouses. The formulas use
each spouse’s annual incomes, the length of the marriage, the ages of the spouses
and tax considerations. They produce a very specific range of possible spousal
support amounts.
A very common mistake made by lawyers is to simply apply the
formula and assume the exact spousal support amount is what will be set by a
Judge. However, the formula does not take into account all the Divorce Act
tests. Judges can look at the math based on incomes but they also have to
consider the means, needs and circumstances of both spouses.
There can be numerous factors that will make the amount calculated
by the simple formula unreasonable. Health or mental health issues, unusually
high or low expenses, the expenses of children including adult children, significant
assets or debts, new partners or roommates, business ventures, career
opportunities and plans for education or retirement can all be presented in
court for consideration.
With so many factors to be taken into account, it is unlikely
that two Judges hearing the same case at trial will make the same decision. This
is in large part why the vast majority of spousal support cases are settled out
of court. It’s simply too hard to predict the outcome of a trial.
And to further complicate the issue, Judges can order
monthly spousal support or lump sum or both. They can order retroactive spousal
support and support going forward. They can order a monthly sum for a specific
period of time or just make it indefinite. If it is ordered to be indefinite then
either spouse can return to court at a point when they believe something
relevant has changed, such as means, needs or other circumstances of one or
both spouses. The re-marriage of the spouse receiving support can lead to an
end to support but not necessarily. The retirement of the payor spouse can lead
to an end to support but not necessarily.
The one sure thing about spousal support is that nothing is
for sure.
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