Michael Ford (post until Oct. 31/19)

Former spouse can share in ex's post-separation income boost

A separated spouse could feel the benefits of a former partner’s income boost, even if it occurred after they split, Toronto family lawyer Erin Chaiton-Murray tells AdvocateDaily.com.

Chaiton-Murray, a partner with Fogelman Law, explains that an earnings boost can impact on support payments, although the full effect will depend on the type of support at issue and the agreements in place between the parties.

For example, she says an increase in income is almost automatically captured in child support payments, which are determined using the Federal Child Support Guidelines.

“There may be some situations where an increase would not result in a change to child support, but the standard way of dealing with the amount of child supportto be paid, and certainly if it’s set by court order, is to review it every year and adjust,” Chaiton-Murray says. “If the payor’s earnings have changed, then the new payment amount will be based on whatever the new income is. 

"The adjustment can be relatively straightforward because of the way the guidelines work,” she says.

However, it can be more complicated when it comes to spousal support, Chaiton-Murray says, adding the impact can vary depending on the terms of the original agreement or court order.

She says in some cases, former spouses build in a review of spousal support, whereas in others, there is a fixed and non-variable amount to be paid over a defined period of time.

“If that’s the case, there may not be an opportunity to revisit the amount at all, even if there has been a large increase in the payor’s income,” Chaiton-Murray says.

In other cases, she says contract clauses may trigger a review of spousal support if there has been a material  increase in the payor’s income, or if it has gone up by a prescribed percentage since the split.

"Determinations of the amount of spousal support that should be paid where there is an increase in income well after the date of separation depends in part on the nature of the initial support claim and the length of the relationship," says Chaiton-Murray.  

"Whether the claim is compensatory or needs-based may impact the ability of the recipient spouse to capture some or all of the increase in income," she says.

“You may have a better argument in a compensatory claim to capture some of that post-separation increase,” Chaiton-Murray says.

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