Spousal support is often awarded to a spouse or adult interdependent partner post-separation or divorce to ensure that one party isn’t financially disadvantaged in the wake of a relationship breakdown. The amount and duration of support will depend on several factors, including the length of the relationship, the disparity of each party’s income, parenting arrangements (if applicable), and each party’s ability to earn income. If the support award is being determined by a third-party decision-maker, such as a judge or arbitrator, the federal Spousal Support Advisory Guidelines provide a basis for calculating the amount of support.
Much like the support amount, the duration of a spousal support award will also depend on the specific situation. Factors such as the existence of minor children, the age of the recipient, and the income-earning ability of the recipient will be taken into consideration when setting the duration of financial support. Once an award has been set, either party may apply to vary the amount of support or terminate support early if there is a material change in circumstances. Below, we will review issues which may impact the duration of spousal support, as well as factors which may trigger a change.
While the duration of a spousal support award is highly dependent on the individual case, there are tools in place to help ensure consistency in family law decisions across the country. The federal Spousal Support Advisory Guidelines (the Guidelines) act as a tool for a judge or arbitrator to calculate the amount and duration of support relative to a specific situation. The Guidelines will provide three calculations – one low, one average, and one high – which the decision-maker can use as a basis for the award. However, these Guidelines are simply a suggestion. The decision-maker is free to vary the amount and duration of support to reflect any other factors not already taken into account.
One of the key considerations used by the Guidelines is whether the couple has minor children, which can affect both the amount and the duration of support. If there are no children, support will often be awarded for a period equal to six months to one year for each year that the couple lived together. If there are children, the duration of support will be based on either the length of the marriage or until the youngest child finishes high school, whichever is longer.
In some cases, a court may award indefinite spousal support rather than setting a specific duration. While the term “indefinite” implies that the support will carry on forever, this is not always the case. In some situations, a judge may simply determine that it is more appropriate to leave the term of support open-ended to allow for greater flexibility. An indefinite support award may still be varied or terminated in the future if the situation calls for it.
There are two specific situations that most commonly prompt an award of indefinite support:
Even in cases where indefinite support is ordered, it is generally understood that support will end once the payor reaches retirement age or that the amount of support will be varied considerably once the payor and/or the recipient begins receiving pension income.
Whether support has been awarded for a specific duration or indefinitely, there are certain circumstances which may prompt a variation or termination of support. To successfully apply to a court for a termination of spousal support, the new circumstances must be considered a material change. Examples of a material change in circumstances include:
Rather than leaving the terms of spousal support in the hands of a judge, couples can also opt to set their own terms for support or waive their rights and obligations regarding spousal support altogether. This can be done at the start of or during a relationship as part of a marriage or cohabitation agreement, allowing both spouses or partners to discuss and come to terms on how they’d like to handle spousal support in the event of a separation. Terms can be customized so that certain events or circumstances will trigger support, or trigger termination of support, providing certainty for each person. If there is no domestic agreement in place at the time of separation, a couple can opt to come to their own terms regarding support in a separation agreement as well, although it may be more of a challenge to reach an agreement in a high-conflict separation. For this reason, setting out the terms in advance when possible is advised.
At Mincher Koeman, our divorce lawyers have considerable experience in assisting clients with negotiating and securing spousal support orders. We are highly knowledgeable on all factors relating to support awards, including the federal Spousal Support Advisory Guidelines, we are skilled at identifying and locating hidden assets, and we always attempt to resolve spousal support matters in the most efficient way possible. If you require legal advice concerning spousal support, please contact our office to make an appointment to discuss your matter with one of our family lawyers by calling us at 403-910-3000 or by contacting us online.
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