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As family law and spousal support lawyers with offices in Vancouver, Surrey, Kelowna and Fort St. John British Columbia we know that- how much spousal support should be paid and how long spousal support should be paid- is one of the most emotional issues clients face at the time of divorce and marriage breakdown.
Have you ever asked yourself the following questions:
- Will my spousal support always remain the same?
- Does the amount of child support I pay or receive affect the spousal support payment?
- If our children become financially independent adults, will the spousal support payment still remain the same?
The MacLean Family Law Group believes a better understanding of the Spousal Support Advisory Guidelines will help you answer these questions.
The Spousal Support Advisory Guidelines are used as informal but legally persuasive guidelines that assist spouses, lawyers, mediators and judges in determining the amount and duration of spousal support. While the Guidelines are not law per se, a series of cases in the BC and other Canadian Superior Courts from 2005 to 2011 make it clear that the Guidelines must be considered when making a decision on spousal support.
There are two basic formulas:
The without child support formula: where child support is not paid and this formula multiplies the years of the relationship times a range of 1.5-2 percent of the annual income difference of the spouses. For example in a 25 year marriage the paying spouse could pay between 37.5 to 50 percent of the difference in income to their lower earning spouse. The payment will last longer as the length of the relationship increases and can be for life. In long marriages incomes may approach equalization while in shorter marriages the amount will be lower and for a shorter period of time.
When people ask for a simplistic version of how spousal support works I tell them -"it's just like the story of Robin Hood- we take form the rich to give to the poor?"
Support is driven by the differences in income of the spouses and we often argue over what each spouse can really earn. When I was in the Supreme Court of Canada I made the powerful and compelling argument that "we cannot encourage paying spouses to quit their jobs to pay less support anymore than we can countenance recipient spouses who refuse to work to get higher support. I told the SCC to do so weakens Canada as a nation. I say support should be paid for spouses who are not able to be self sufficient not for those who refuse to become self sufficient.
The second formula is called the "with child" support formula: where there is a legal obligation to pay child support.
This formula often results in a combined child and spousal support payment for the receiving spouse’s family unit of over 52 percent of the net family income BUT at the same time a lower spousal support payment because the amount of spousal support payable is calculated by taking into account the payment of child support and sharing what is left over.
But -what happens when children cease to be children of the marriage as in situations where they become financially independent adults or finish their education?
What takes place is a transition from the "with child" formula to the "without child" formula. This means that a spouse can apply to the court to vary their spousal support order, bringing them under the without child formula. A good lawyer will build in a transition provision in the order or agreement so there will be a reduced need to come back to Court. The goal is to properly take into account that there should be an increase in spousal support once child support is no longer payable and the payor’s ability to pay spousal support is now improved as a result. We call this a transition from the with child to the without child support and MANY PEOPLE FAIL TO CONSIDER THIS. DON'T BE ONE OF THOSE PEOPLE!
So there you have it. To briefly answer the questions above:
- No, spousal support does not always remain unchanged;
- Yes, child support does affect your spousal support payment; and
- If your children cease to be children, your spousal support may properly increase.
Spousal support is one of the most complicated areas of family law. We strongly advise you to get legal advice from a lawyer specializing in family law. Special software is needed to calculate spousal support amounts, especially if child support is a factor. Contact a good family lawyer in your province including those who provide free advice on Legal Advice Scene or feel free to call us the MacLean Family Law Group at (604)602-9000 in Vancouver or any of our other three offices across the province. You can even call us Toll Free across North America at 1-877-602-9900.