The law views spousal relationships as financial partnerships. When the relationship breaks down, the spouse with more income or assets may have to pay support to the other. Entitlement to spousal support does not depend on whether the parties were married. A common-law spouse can be entitled to spousal support on the breakdown of their relationship depending on the particular circumstances of their relationship. Entitlement to spousal support is not automatic. When assessing claims for spousal support, the court considers the roles each spouse assumed during the marriage and whether those roles (for example, childcare responsibilities) had an impact on a spouse’s ability to be self-supporting. Just because there is a difference in income level does not automatically translate into an entitlement or obligation to support.
Separation and Divorce can be a very emotional time and the stress or pressure of it all can lead one party to jump into an agreement in a hurry to try and move on, not realizing the consequences or without fully understanding their obligations or entitlements under the law. For instance one spouse may feel guilty or responsible for the relationship breakdown and may quickly agree to pay or waive support out of guilt. When the guilt fades, that party realizes that they were in need of support or that they could not afford the level of support they have now agreed to pay.
You should never sign an agreement concerning spousal support without first discussing your entitlement or obligations with an experienced family law lawyer. At Singleton Family Law a call to (902) 492-7000 can arrange a meeting, usually the same day, to discuss these important issues.
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The level of support will turn on a particular family’s financial circumstances. What other people pay or receive is usually not relevant because each family’s financial situation and lifestyles are different. People often have unrealistic expectations after separation. It is almost inevitable that both spouses will have to re-assess their financial priorities and make changes to their spending habits as the family income which was previously used to support one household will now have to support two.
Calculating support is largely a case-by-case exercise. The Spousal Support Advisory Guidelines have been developed to assist in the calculation of spousal support. These Guidelines are not binding on the court but are meant to provide guidance in applying the law to determine an appropriate level of support. Most experienced family law lawyers have computer software which can analyze complex financial situations and assist in determining a fair level of support.
Lawyers at Singleton Family Law work with our clients to review their budgets and determine a proper and realistic level of support and what income is going to be used for spousal support calculation.
Central to the calculation of spousal support is always the issue of ‘income’. Calculation of income may seem like a straightforward exercise, and for the most part will depend on the Line 150 amount of your Income Tax Return. However, when a party is self-employed or receives income from a business or investments, the calculation of that party’s income can be complex. One party may argue to “impute”, or have the Court declare that income for support purposes is a different amount than which has been declared for income tax purposes.
In our experience there is frequently one party in a relationship who has control over the parties’ finances and may attempt to hide or skew the parties’ true financial situation upon separation. Courts have strict rules on financial disclosure. An experienced family law lawyer can help you navigate those rules to ensure that you receive a complete financial picture.
For example, in Ghosn. v. Ghosn, a decision of our Supreme Court (Family Division) argued by lawyers at our firm, the husband claimed that his income for support purposes was $60,704.00. At the conclusion of the trial the justice had determined that his true income for support purposes was an amount of $294,000. Since the court’s finding the correct level of income is crucial for the determination of both spousal and child support, the impact on the support payments ordered can be dramatic.
A spouse can generally apply to vary an order concerning spousal support if there is a material change in the parties’ circumstances after the order is made. An example of a material change of circumstance would be if one party experienced a significant change in their income, such as a job loss. Another example may be if a recipient spouse remarries or begins residing with a new spouse whose income alleviates the need that existed when the support was ordered.
The burden will be on the party who is making the application to prove that there has been a material change of circumstances. If two spouses have previously entered into an agreement respecting spousal support that was not incorporated into an order and one party now wishes to vary the terms of that agreement, the Court will consider the agreement in making a decision on spousal support using a number of factors. Among other factors the Court will look at are the circumstances surrounding the signing of the agreement, including whether the agreement was drafted on the advice of a lawyer and whether the other party had independent legal advice.