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Spousal support/alimony: what is it and how do I get it?

By Marcus Sixta

There is a lot of misinformation out there about spousal support, or alimony, as we have come to know it due to the influence of American TV. Spousal support is an amount of money paid by one spouse to support the other spouse after the separation. However, it is not payable in every relationship. This is a common misconception, but just because you were married or in a common-law relationship does not mean you will get spousal support.

After a separation or divorce, the spouse seeking support must establish a need for spousal support (alimony) and the other spouse must have the ability to pay it. The Divorce Act and the Family Law Act are helpful to review as they set out factors which must be considered when determining if one spouse should receive spousal support, how much they should get, and for how long. These factors are set out below. 

Spouse

Only a “spouse” can claim spousal support after separation. In British Columbia, a person is a “spouse” for the purposes of the Family Law Act if the person:

  1. is married to another person;
  2. has lived with another person in a marriage-like relationship for a continuous period of at least two years; or
  3. has lived with another person in a marriage-like relationship and has a child with the other person.

These criteria must be met to establish that you are a spouse under the Family Law Act, which many people refer to as being in a “common law” relationship.

How am I entitled to spousal support?

First, the spouse seeking spousal support has to prove that he or she is entitled to receive it. The court will refer to the following objectives of spousal support to determine entitlement:

  1. spousal support may be awarded to recognize any economic advantages or disadvantages to the spouses arising from the relationship between the spouses or the separation;
  2. spousal support may be awarded to help the spouses share any financial consequences arising from the care of any children, aside from child support;
  3. spousal support may be awarded to relieve any economic hardship of the spouses arising from separation and divorce;
  4. spousal support may be awarded in order to promote the economic self-sufficiency of the spouses within a reasonable period of time.

How much spousal support do I get?

Once a spouse establishes entitlement to spousal support, the court will determine the amount and for how long spousal support will be paid by considering the conditions, means, needs and other circumstances of each spouse. Some factors include but are not limited to the following:

  1. the financial situation of each spouse during the relationship and after separation;
  2. the ages of the spouses;
  3. the education of the spouses;
  4. the career potential of the spouses;
  5. the physical health of the spouses;
  6. the length of the relationship;
  7. each spouse’s ability to earn income;
  8. the roles and functions of each spouse during the relationship;
  9. the ability of each spouse to support him or herself; and
  10. the ability of the payor spouse to pay spousal support.

The divorce court will also take into consideration any arrangement, agreement or court order relating to spousal support between the spouses.

Often, the family law court will base their decision about spousal support on the Spousal Support Advisory Guidelines. These guidelines are not law but they provide a useful mathematical formula to determine a range of appropriate amounts of spousal support in a variety of situations. They take into account the incomes of both spouses, the ages of the spouses, the length of the relationship and who the children (if any) live with. The Spousal Support Advisory Guidelines will provide a low, mid and high range of spousal support. This range can be used as a starting point to determine the appropriate amount of spousal support. 

Spousal support arrangements

The spouses can formalize their arrangements for spousal support in a separation agreement or prenuptial agreement drafted by a family lawyer. Otherwise, a judge can make one of the following orders regarding the payment of spousal support under the Divorce Act or the Family Law Act:

  1. no spousal support is needed;
  2. spousal support will be paid in one lump sum; or
  3. spousal support will be paid in regular monthly payments or on some other periodic basis.

Also, it is very, very important to know that in British Columbia, under the new Family Law Act, an unmarried spouse (common law spouse) must file a claim for spousal support within two years of the date of separation or two years of having a child if the spouses did not live together for at least two years. If they do not, they may not get spousal support at all, regardless of the need for it.  

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