Spousal Support / Partner Support

Whether you have been married or living common law, as a spouse you have the right to apply for spousal support.  If you are married, it is a two step process.  Firstly, it must be determined if you are entitled to spousal support. Secondly, it must be determined how much spousal support and for how long spousal support should be payable for.  If you are in a common law / adult interdependent relationship there may need to be a preliminary step to determine if in fact you were in a common law relationship.   These are decided on an analysis of the circumstances of your marriage/relationship and its breakdown.

Marriage:    If you are married, the Divorce Act (1985) sets out four objectives which will assist in determining whether a spouse is eligible for spousal support. These objectives are as follows:

  • Economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • Any financial consequences arising from the care of any child of the marriage;
  • Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  • Promote the self sufficiency of each spouse within a reasonable period of time.

In determining whether a spouse is eligible for spousal support, the specific circumstances of each marriage is reviewed.  However, spousal conduct, or misconduct, is not a factor the court will listen to or consider when assessing entitlement to spousal support.  The more prevalent factors which are relevant include the following:

  • The length of the marriage;
  • The role of each party within the marriage;
  • The income earning ability of each party;
  • The needs of each spouse;
  • Whether the Applicant spouse left the work force during the marriage and if so, for how long; and
  • Whether the Applicant spouse is able to return to the work force.

If it is determined that a spouse is entitled to spousal support, the next step is to calculate the amount and duration of spousal support.   You do have a choice, if consented to, on whether you want to pay / receive spousal support monthly or in a lump sum.   There are different reasons for why one may be better for you than the other; this is best determined by an analysis of your own unique circumstances.

Common Law:     If you have been living in a common-law relationship or an Adult Interdependent Relationship, the Family Law Act (Alberta) sets out the basic requirements to consider whether spousal support should be paid / received.  In May 1999, the Domestic Relations Act (Alberta) was amended to allow common law spouses to apply for spousal support.  The Domestic Relations Act (Alberta) has since been replaced by the Family Law Act (Alberta).    The legislation provides that common law spouses who have no children must have lived together for 3 years continuously to be eligible to apply for spousal support.  Where a child has been born to spouses in a common law relationship, a common law spouse may apply for spousal support provided they have lived in a relationship of some permanence, or if they have entered into a written Agreement that is an Adult Interdependent Partner Agreement under the terms of the Adult Interdependent relationships Act (Alberta).

The objective in the Family Law Act are:

  • recognize any economic advantages and disadvantages to the spouses or adult interdependent partners arising from the relationship or its breakdown,
  • apportion between the spouses or adult interdependent partners any financial consequences arising from the care of any child of the relationship over and above the obligation apportioned between the spouses or adult interdependent partners pursuant to a child support order or a child support agreement,
  • relieve any economic hardship of the spouses or adult interdependent partners arising from the breakdown of the relationship, and
  • insofar as practicable, promote the economic self‑sufficiency of each spouse or adult interdependent partner within a reasonable period of time.

The factors set out in the Family Law Act are:

  • the conditions, means, needs and other circumstances of each spouse or adult interdependent partner, including:
  • the length of time the spouses or adult interdependent partners lived together,
  • the functions performed by each spouse or adult interdependent partner during the period they lived together, and
  • any order or arrangement relating to the support of the spouses or adult interdependent partners,
  • any legal obligation of the spouse or adult interdependent partner having the support obligation under the order to provide support for any other person, and
  • the extent to which any other person who is living with the spouse or adult interdependent partner having the support obligation under the order contributes towards household expenses and thereby increases the ability of that spouse or adult interdependent partner to provide support, and
  • the extent to which any other person who is living with the spouse or adult interdependent partner who is to receive support under the order contributes towards household expenses and thereby reduces the financial needs of that spouse or adult interdependent partner.

If you have any questions or concerns about paying or receiving spousal support, please contact us to discuss.

 

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