Can a family court judge order spousal support in a divorce even if a marriage contract says “no spousal support?”

There are specific circumstances in which a judge might set aside a marriage contract to order spousal support. They are discussed in more detail in this podcast in this video and in this easy-to-understand best-selling book on Ontario Family Law. It is not a simple answer. You really should consult with a family lawyer about how the law applies to your particular circumstances because a little fact can make a big difference. But, I will give also give a brief summary.

Spousal support can be ordered because a marriage contract has been set aside in these circumstances:

  1. The parties did not understand the contract, meaning they did not each consult with an independent lawyer of their own choosing.
  2. They did not exchange financial disclosure when they signed the contract.
  3. The contract has terms that are not legal (and the terms of the contract are not severable).
  4. There were problems with the negotiations – either one party was under duress, or one party was under pressure (the contract was signed right before the wedding), one party was trying to be “sneaky” with regard to the wording of the terms, there was unequal bargaining power, etc.
  5. The parties did not contemplate the situation that they were in now at the time they signed the contract.

There is a more complete discussion of these considerations in the resources listed above. If your contract was drafted by a good family lawyer, then chances are it has all the terms and wording it needs to guard against being set aside. “Spousal support releases” are really technical. You really need a lawyer who knows a lot about family law to make sure a marriage contract says everything it is supposed to say in order to make sure a court will not order spousal support. So, if you have a marriage contract or cohabitation agreement that your ex is challenging, you should take it to a family lawyer and have them check the terms, and the situation, and let you know your situation. Spousal support can be worth a LOT of money in a divorce or separation, so it is best to know your rights and not guess. 

One more note… The test for whether a court can order temporary or interim support is different from the test for making a final order for support. It is possible that a judge can order spousal support until the issue of whether spousal support should be ordered at all is determined in full. I realize that sounds a little confusing. It is a complicated area of law, which is another reason to speak to a good family lawyer/divorce lawyer about your situation.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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