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Spousal Support

For more comprehensive family law information go to:

nsfamilylaw

Q - What is spousal support?

Spousal support (also known as maintenance or alimony) is financial support provided by one spouse to the other after separation according to a written agreement or court order. Support can be periodic (usually monthly), lump sum, or both.

If support is periodic, it can be time-limited or have no set ending. Support orders can be made on an interim (temporary) basis or final basis. Even final spousal support orders can sometimes be varied if there is a significant change in circumstances.

Married spouses, registered domestic partners, and common law partners who have lived together for at least 2 years can apply for spousal support.

Q - What laws apply to spousal support?

The federal Divorce Act applies to married spouses who have applied to court for a divorce, and to former spouses who are divorced.

Nova Scotia's Maintenance and Custody Act applies to registered domestic partners, married spouses who have not applied for a divorce, and common law partners who have lived together for at least 2 years (for a spousal support claim).

These laws outline factors and objectives that must be looked at in determining entitlement to, as well as amount and duration of, spousal support. Case law is also important in determining spousal support, along with the particular facts of each situation. There are also Spousal Support Advisory Guidelines.

Q - What are the Spousal Support Advisory Guidelines?

The federal Spousal Support Advisory Guidelines were developed in an effort to make calculation of spousal support more predictable. They were developed for divorcing spouses, but may also be used for common law or registered domestic partners. The Guidelines do not deal with the question of whether a spouse is entitled to support. Once this is decided, the Guidelines can help to determine how much support should be paid, and for how long. Unlike the Child Support Guidelines, the Spousal Support Advisory Guidelines are not law. Spouses, lawyers, and judges are therefore not required to follow the Spousal Support Advisory Guidelines, but may choose to do so.

There are two formulas in the Spousal Support Advisory Guidelines, one for spouses with dependent children and one for spouses without dependent children. Support for spouses with dependent children is based on the difference in the spouses' net (after tax) incomes and the amount of child support paid. Support for spouses without dependent children is based on the gross (before tax) difference in the spouses' incomes and the length of their marriage. The formulas are quite complicated and you will probably require the assistance of a lawyer to use them.

Q - What happens if the spouses cannot agree on entitlement to, or the amount of, spousal support?

A -If you can't reach an agreement about spousal support, you may have to go to court and have a judge decide the issue.

Married spouses, registered domestic partners, and common law partners who have lived together for at least 2 years can apply for spousal support.

An application for spousal support may be made through either the Family Court or Nova Scotia Supreme Court if you live outside of the Halifax Regional Municipality and Cape Breton, or through the Family Division of the Supreme Court if you live within the Halifax Regional Municipality or in Cape Breton.

A spousal support application is made either under Nova Scotia's Maintenance and Custody Act or under the federal Divorce Act.

Q - What factors does the court consider in deciding spousal support?

To make a spousal support order a judge must be satisfied that the spouse who is seeking support has a need for support, and that the other spouse has the ability to pay it.

The federal Divorce Act applies to married spouses who have applied to court for a divorce, and to former spouses who are divorced. The federal Divorce Act lists four objectives for spousal support:

  • recognizing any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • considering the financial consequences of caring for children, over and above child support;
  • relieving any economic hardship caused by the breakdown of the relationship; and
  • promoting the economic self-sufficiency of each spouse within a reasonable amount of time.

The Divorce Act requires the court to look at the condition, means, needs and other circumstances of each spouse including

  • how long the spouses lived together;
  • the functions performed by the spouses while they lived together; and
  • any order, agreement or arrangement relating to support of the spouse or child.

For spousal support purposes, Nova Scotia's Maintenance and Custody Act applies to common law spouses who have lived together for at least 2 years, to registered domestic partners, and married spouses who have not applied to court for a divorce. Factors the judge will consider under the Maintenance and Custody Act include:

  • the role of each spouse within the relationship;
  • the length of time the spouses lived together;
  • custody arrangements for children of the relationship;
  • any agreement between the spouses that one will support the other (in writing or not);
  • any marriage contract or separation agreement between the spouses;
  • whether one spouse supported the other during the relationship;
  • whether both spouses have paid employment or similar earned income;
  • any obligation to pay child support, which will take priority;
  • the reasonable needs of each spouse;
  • whether each spouse is able to become financially independent;
  • whether a spouse has a physical or mental disability which affects their ability to be financially independent.

Q - Is a spouse entitled to information about the other spouse's financial situation?

A - If you apply for a spousal support order against your spouse, you are entitled to receive certain financial information from him or her and you in turn will have to provide information about your own financial circumstances. This information includes income tax returns, pay stubs, itemized statements of income, expenses, assets and liabilities. Both spouses may also have to provide financial information about any persons they are living with, such as a new spouse or partner.

Q - How often is spousal support paid, and for how long?

A - Spousal support orders or agreements usually specify regular payments, often monthly or every second week.  These are called periodic payments. A lump-sum payment can be ordered in addition to, or instead of periodic payments. Spousal support may be paid for a fixed period of time with a specified end date, such as for two years or until the spouse receiving support enters a new relationship, or it may be paid for an indefinite period of time.

Q - Can spouses deduct spousal support payments for income tax purposes?

A - Periodic spousal support payments qualify as an income tax deduction for the paying spouse. The receiving spouse must declare the payments as taxable income. Contact the Canada Revenue Agency or a lawyer for further information about the tax treatment of spousal support.

Q - What can I do if support payments are not paid, or are late?

A - If you have a spousal support order, and you are having trouble getting your money, you should contact the Maintenance Enforcement Program at 424-0050 in the Halifax area, or toll-free at 1-800-357-9248 from anywhere else in Nova Scotia. If your order is not registered with the Program, you may register at any time. There is no charge for registering. If you have a written spousal support agreement, this Program will not accept it until the written agreement is registered with the court.  Otherwise, you should speak with a lawyer.

July 2010

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