You can take everything, including the dog, but I am not going to pay you a dollar in spousal support! Sound familiar?
Many couples, both married and common-law, can settle all their property issues and even resolve issues surrounding their kids, but finalizing the separation agreement may be held up indefinitely, as they cannot agree on what I call, “the ticklish issue” – spousal support.
Many lawyer’s letters and thousands of dollars are spent trying to reach a solution, acceptable to the parties. It is an emotional issue, which continues well after the relationship is over.
Spousal support is a payment made by one spouse to the other, intended to help defray the recipient’s day-to-day living expenses or to compensate the recipient for the financial choices made during the relationship.
There is no automatic entitlement, as it depends entirely on the individual circumstances of the couple.
This also applies to the amount and duration of the payments. The longer the relationship, the more likely the court will be to make an order for support and to divvy up the payor’s income to ensure that both parties come out with an equal amount, to attempt to maintain the lifestyle the parties led during the relationship.
Spousal Support Advisory Guidelines (SSAG) have been developed as a mechanism for making these calculations.
The factors that determine the amount and duration of spousal support include; whether the spouse is already paying child support, the age of the parties at separation, the parties’ T4 incomes, and the duration of the relationship.
For long relationships, the order may be for life or at least until retirement of the payor.
All the more hard to swallow is the situation where the recipient, who, by choice, is unemployed or under–employed. In this instance the court may look at the recipient’s income earning capacity, based on previous earnings, work experience, and qualifications and allocate an “imputed” income. The same calculations are then completed using the recipients’ imputed income.
Perhaps the only “sweetener” to the payor is that spousal support payments are tax deductible to the payor and taxable to the recipient.
However, there are some alternatives to end the pain of ongoing support payments with a clean break. Consider making a lump sum payment or a redistribution of the family assets. For example instead of splitting the family assets equally, consider allowing the recipient to keep the family residence in lieu of many months of support payments. Through reasonable negotiations, mediation, and the assistance of sound financial planning, this can be a possible solution for the parties.
- Adrienne Dale is a senior lawyer with Becker & Company Laywers, who practised law in South Africa. Send questions to firstname.lastname@example.org.
@ Copyright 2013