Am I Entitled to Spousal Support? I paid for my spouse’s education, I looked after the kids when they were little, and I my income is lower.

Questions about spousal support are complicated with uncertain answers. Although your question mentions eligibility for spousal support, you have correctly identified that eligibility is a different question from how much you will get.

Spousal support is very different from child support because it is still, ultimately, up to the discretion of the judge to decide. That is distinct from child support, which is governed by the Child Support Guidelines. The Child Support Guidelines are the law and they set out precise amounts for every parent of a child to pay.

Spousal Support does have “Guidelines” but:

1. they do not apply in every circumstance (just being married or living together does not, by itself, create an obligation to pay spousal support

2. they are not the law (although the calculations made under the Spousal Support Advisory Guidelines can be really helpful to a judge)

3. they do not provide a precise number, but a range of possible support options that require the court, or the separated couple, to consider many factors in relation to the relationship, the family and the spouse’s situation to arrive at a final number, without a precise calculation.

So, to go back to your initial inquiry about whether you would be entitled to support, which is the first point above, you first need to meet the basic legal entitlement test. To even be considered for spousal support, the separated spouses must fall into 1 of the following categories:

1. they must be married to each other (how long does not matter);

2. if not married, they must have lived together for three years; or

3. if not married, they must have a “relationship of some permanent” and be either the natural or adoptive parents of a child.

After qualifying under one of the three categories above, a spouse is not necessarily eligible for support. To understand whether a spouse may be eligible, you need to understand that spousal support actually encompasses two types of support, with different eligibility considerations:

1. Compensatory Support

2. Economic or Non-Compensatory Support.

Compensatory Support is to compensate a spouse for the unpaid work that he or she did during the marriage – such as caring for the children, preparing meals, cleaning or maintaining the house, etc. It is, in its simplest form, “pay” for these types of activities. But, it is paid after separation. So, a spouse can be entitled to support if he or she did work during the relationship for which he or she was not compensated. Of course, that compensation could include unpaid work that the other spouse did during the relationship.

Economic/Non-Compensatory Support is a consideration of a spouse’s economic needs at the end of the marriage or relationship, coupled with the effect of the relationship on that spouse. It includes considerations such as:

1. the spouse would have had a higher income/better job, but for the spouse’s responsibilities to the children or other spouse during the relationship;
2. the spouse became accustomed to a certain lifestyle during the relationship, which the spouse can not sustain on his or her income alone;
3. the spouse has some other form of impediment to becoming self-sufficient that arose during the relationship, such that the spouse needs assistance to meet his or her needs;
4. the spouse cannot maximize his or her income-earning potential because of ongoing childcare responsibilities in relation to the children of the marriage or relationship;
5. the spouse has to maintain a home for the children of the relationship to live in some or all of the time (and there should not be big disparities between the homes of the parents);
6. whether the proposed support-paying spouse can afford to pay support in light of that paying spouse’s obligations to pay support for children, or other family responsibilities.

If, after looking at those considerations, you conclude that you may be eligible for support, you should still speak to a top family law lawyer. After all, it is still up to the judge to decide whether a person gets support at all, so you want to present your case effectively, hitting all the important points and persuading the judge of your entitlement.

Do not delay meeting with a lawyer. Several of the factors for deciding whether a person is entitled to spousal support relate to financial need (do you need support to keep your lifestyle, become self-sufficient, etc.?). The longer you go without support, the more that you show that you do not need support to live a lifestyle that is acceptable to you. The longer you wait to pursue a spousal support claim, the harder it is to establish entitlement, and the more you show that you do not need much support (or any support) to look after yourself. That is true even if you let things languish in negotiations for a long time. Judges assume that if you really need support, and your spouse is not paying, you would head to court to get it. Even if you are entitled to compensatory support, waiting can still reduce the amount of spousal support.

Once a spouse has established entitlement to spousal support, the amount is based on several factors that are set out in sections 15.2(4) and 15.2(6) of the Divorce Act and section 33(9) of the Family Law Act. 

In addition, you will need to consider the income available to the support-paying spouse, taking into account expenses related to children and other necessities. Where a spouse earns income from sources other than employment, determining income can be a little tricky.

The Spousal Support Advisory Guidelines will give ranges for both the amount and the length of spousal support. However, to get down to a final number for both, you need to consider those factors as set out in the law. Remember that the Spousal Support Advisory Guidelines are not legally binding like the Child Support Guidelines, and it is still ultimately up to the judge as to whether you get anything at all. 

You should probably meet with a good family law lawyer who can explain how all the factors above apply to your particular case. There may be little factors that make a big difference.

But, if you cared for the children and looked after your spouse for a period of time, and your income is lower than that of your spouse, your chances of getting spousal support appear to be pretty good. To make sure, and maximize your chances, consult with a lawyer.

If you have a spousal support issue (either because you are seeking, or may be paying support), contact Certified Specialist in Family Law, Top Toronto Divorce Lawyer, John Schuman, using the number at the top of the page to talk to us during business hours or use the form below to reach us at other times. We promptly respond to all inquiries, usually by phone unless you request otherwise. John has been counsel on many complicated and difficult spousal support cases and can provide you with expert legal advice and representation on that and all other family law matters.