Separation and Divorce: Spousal Support Strategies
Posted: Wednesday, November 29, 2006
by Colin Kennedy
http://www.candivorce.ca
Part 1 - How to Get Your Fair Share
Discover strategies for getting spousal support. You will uncover inside information about how the courts reach their decisions about your money.
Part 2 - How to Protect Your Wallet
opposite strategies are presented. Understanding both sides of the argument will make you better informed, and being informed means that you are in a superior position.
If you are separating or divorcing and you have children, then the guidelines apply to you and your ex. The guidelines say that you pay or receive monthly money for child support based on published table amounts. Everybody follows the guidelines; arguments and side deals don't work. "You earn this much, you pay this much".
Spousal Support is...
- Money paid to help you become self-sufficient.
- Temporary in nature, to help with the transition to self-sufficiency and not meant to be a pension for life.
- Money paid to compensate for contributions to the marriage.
- Money paid to relieve financial hardship.
- Money paid to maintain your accustomed standard of living.
- A measure to compensate for economic loss as a result of diminished earning capacity, lack of career development, lack of pension benefits,
or anything other economic loss.
- You and your spouse come to terms and write it down using a valid separation agreement.
- Alternatively, you hire an agent, paralegal or a lawyer, and eventually you face-off in court where your team presents your evidence and hopes the judge will rule in your favour.
Going to court can be costly in terms of your time, aggravation and certainly your money. Lawyers tend to be good at what they do, but they also charge $300+ an hour.
Part 1 - How to Get Your Fair Share.
Are you entitled to claim support?
Contrary to what your ex claims, you may have a case for spousal support if...
- Your marriage or common-law relationship breaks down.
- It does not matter if your relationship is man-woman, or man-man, or woman-woman.
- A week-end together does not equal a common-law relationship. In some provinces the time required to acquire common-law rights is three years; in other provinces the time required is two years.
- Spousal conduct is not a factor. The courts agree that bad conduct is usually irrelevant when deciding spousal support.
- Children are not a factor to determining your "entitlement" to spousal support.
- If children are involved, the courts will always make decisions based on a key factor: "Is it in the best interest of the children of the marriage?"
There's the money to consider.
Spousal support is money, and the money is what it is all about. For the courts to award you money the court needs to determine...
- Your contribution to the relationship and the economic consequence's of the relationship.
- Your and your ex's current assets and means. Yes, you show an economic need for support and you prove that your ex has the resources to actually pay you support.
- The needs and means that both of you may or may not have in the future.
- Your capacity to contribute to your own support.
- Your past standard of living while living together.
- Your age and the time that you were in the relationship is also a factor.
- What measures are available to you to become self-sufficient, and the time and costs it may take for you to become self-sufficient.
- If there any legal obligation for you to support another person. (Children, adult children who by reason of illness or disability remain in your charge, or other dependents)
- The desirability of you remaining at home to care for children of the marriage.
- You contrubution to your ex's career development.
- If there is a loss of your earning capacity or career development because you contributed to the family resources by performing housekeeping and child care duties?
Do your homework - before you rush off to the local law office.
Your circumstances are unique, and the courts need proof in the form of paper evidence. It is not good enough to simply say that you stayed at home and missed a university degree or did not get career advancements. You need to document everything.
You can save thousands of dollars in legal bills if you gather your own paper work. Too much of a lawyer's or paralegal's time is spent holding meetings and requesting real evidence. It pays you big dividends to do this initial work yourself. Remember the legal people charge you by the hour, so every meeting and phone call is billed at $300+ an hour.
How Much Money do You Claim?
Your first strategy is to complete a written separation agreement. It is always a good idea to get this agreement as soon as possible, but often one spouse is reluctant to sign. Don't let the absence of a written agreement stop you; you do have the right to file a spousal support request with the court.
In the absence of an agreement you will then proceed to ask the courts to make orders for support, and traditionally in every province you must prove two issues. 1. Your need for spousal support. 2. The ability of your spouse to pay you now and in the future.
We agree that to be successful in your attempt to have an order for spousal support, you must provide evidence in the form of real documents and financial statements. The amount of paper evidence can be rather large. Start with a copy of your marriage certificate and evidence that you separated or became divorced. Usually the spousal support issues are dealt with during the divorce process, but you do have a right to seek spousal support before or after divorce.
Needs Strategy
Your circumstances are unique. It is not good enough to say that you want $1,000 a month.
Refer to the bullet points above and lay out a plan - and support your plan with documents.
Let's say you have been a stay at home mom and the children are almost ready to leave home. How did you contribute to the marriage and your spouse's career. Did you have the time to continue your own education or career promotions? What do you need to become self-sufficient? Remember, lay out the plan and support your numbers with documents. "I wanna go to school" is not good enough. What school, what is the total cost, how long will it take, and how will things be different when you graduate?
If you are at home with children and it is in the best interest of the children that you stay at home, then you'll have a need for spousal support money because the child support money is not going to be enough. Provide a financial statement showing your budget and its shortfalls.
Means
If your spouse earns $10.00 an hour, your chance of getting $2,000 a month is somewhat remote. The second part of the equation is his/her ability to pay.
Collect evidence. If your spouse is employed, you can expect to have him/her produce three-years tax returns, corporate shares and pension plans, plus a statement of income and expenses.
If your spouse is self-employed, has commission earnings, or owns/controls a business, you will need to work a little harder to collect an accurate financial picture. Probably there will be an attempt to hide this information, and if this happens you have the right to ask the courts to make an order for your spouse to produce documents. Too often all you will get is a recent tax assessment. Don't buy into this. Ask for complete records, including bank statements.
Legal Process
The legal process varies by province, but typically you start with a Notice of Motion, which is simply a request to have the court look at your supported claim. You will be required to give your spouse a copy of the notice and then you wait for a date when the court will hear what you have to say. The court has discretion on what it will do next. It could make temporary orders, give you procedural advice, or move on to an informal hearing which could be in the form of a case conference. (informal meeting with both sides and a judge).
You are permitted to start this process without legal representation, or you can hire an agent, paralegal or a lawyer to guide you, prepare the court documents, file and serve and go with you to the hearing or conference.
The key strategy is to do your homework by gathering evidence and making your initial plan. This strategy can save you thousands of dollars in fees, boost your confidence, and place you in a position of control.
Part 2 - How to Protect Your Wallet.
There is a big difference in child support and spousal support. As stated above, child support is a given. If you have children of the marriage, you must comply with the
The second part of their case is to prove that you can actually pay the money. If your sole income is from employment, then you will need to show that you need every penny.
If you are self-employed, have commission earnings, own or control a business then remember that the acceptable document to prove income is your tax assessment. And we all know that if you have followed the accepted rules, your tax return will show a low after-expenses income. If CCRA accepts your return as true, then the courts will too.
If you get a letter from his/her lawyer, you can often decline to answer. Don't be too alarmed by the language; it is the lawyer's job to entice you to pay up, and the tone of the letter can be either threatening or buddy-like.
Eventually you might be given a Notice of Motion or a summons to appear in court. It is not wise to ignore this request. When the other side serves notice, they will usually include the applicants Affidavit of Evidence, and perhaps copies of documents. Do not ignore requests from the court.
Warning! You have an obligation of full disclosure. Recent legal cases show that court may order you to pay large retroactive amounts of support if the court finds that you attempted to hide income.
About the author: Colin Kennedy can be reached at http://www.candivorce.ca Colin is an writer, sailor, photographer, parent, lover, and a divorce specialist helping people with divorce.
Lawyers and paralegals have the author's permission to distribute this article.
This Article has been viewed 968 times. (Not updated in real-time.)
No comments yet.We want your comments! If you can read this, you don't have javascript enabled, so you can't use this comment system. Please enable javascript.