On behalf of Gary Kirk of Kirk Montoute LLP posted in Family Law on Monday, May 2, 2016.
Of course in every divorce both parties are concerned about future financial stability. A large piece of the puzzle is whether spousal support will be awarded and how much money will be transferred from one ex-spouse to the other for that support.
From a practical standpoint, matters of spousal support are often resolved in negotiations between the divorcing parties (and their lawyers) that result in a settlement agreement. However, what a judge would be likely to decide in the case can frame the negotiations. Most of the legal issues are decided under the federal Divorce Act with additional authority under Alberta’s Family Law Act.
The first issue a judge must decide is whether the spouse who is less well off is entitled to a spousal support award at all. Spousal support can be compensatory — to compensate the recipient for economic loss because of the marriage that puts him or her at a financial disadvantage — or non-compensatory — based on the recipient’s unique needs or to restore the recipient to the standard of living enjoyed during the marriage.
In a previous post, we described in more detail the differences between spousal support that is compensatory and that which is non-compensatory. Sometimes spousal-support entitlement can be based on both kinds of factors. Significantly, with narrow exception, spousal misconduct is not to be considered relevant to the decision of support entitlement.
If entitlement is established, the next issue is what will the award look like in amount and duration. In order to increase predictability, the Department of Justice Canada paid two family law professors to develop advisory guidelines for spousal support awards. While not legally binding, judges (as well as lawyers and their clients in divorce negotiation) often look to the federal Spousal Support Advisory Guidelines or SSAG in shaping awards.
The SSAG are very complex and depend on a number of factors such as:
- Whether child support is also going to be ordered
- Length of marriage and relationship
- Ages of parties
- Composition of family considering children and their ages
- Tax matters
- Unique needs
- And more
Software is available to assist with guideline calculations, which generate advisory ranges for both duration and amount of awards. The guidelines will be discussed further in future postings.
Related Posts: Understanding home ownership and property rights in a divorce, Travelling without children during a family law dispute, Set boundaries and rules to protect kids from child custody drama, Protecting credit amidst a family law dispute