Determining spousal and child support payments can be difficult to do during divorce; with emotions running high and a confusing legal process ahead of them, many divorcees can’t come to an agreement and must go to court to have a judge determine support payments. However, many divorcees are able to solve these issues themselves. They understand that going to court increases conflict during an already difficult time since the court process is based on a win-lose approach. This often creates an adversarial environment (or, “court battle”) that doesn’t help to maintain healthy relationships, which are especially important when children are involved.
If you and your soon-to-be-Ex can avoid going to court by determining support payments yourselves, you will undoubtedly save time and money. Not only do contested divorces last over 6 months longer on average, they cost nearly 10 times as much according to a 2011 survey of Canadian divorce lawyers.
So, how are spousal and child support determined?
Determining child support
Child support is potentially payable whenever there are children involved in a divorce. Child support is intended to support not just the child(ren) themselves but also to help the recipient spouse with child care expenses. Child support is always payable to your Ex and is never paid directly to the child. Child support is typically terminated when the child reaches the age of majority (18 or 19 years old in Canada, depending on the province in which you reside. Click here for more information.), however if the child is a full time post-secondary student, child support can be extended past age of majority.
The amount of the child support payment is determined based on a few important factors. These factors are: your annual income, the number of children you have, the age of your children, and your custody arrangement. In cases where you split or share custody of your children, the annual income of both spouses is required to determine the child support payment amount.
With the exception of the province of Quebec, the child support payment amount is calculated based on guidelines set out by the Government of Canada. These guidelines are strictly implemented and the support payment amounts that the guidelines prescribe are firm. In other words, judges will very rarely deviate from these amounts. To calculate how much your child support payment would be please try our free calculator.
Determining spousal support
Spousal support is money paid from one spouse to another after divorce (in the US, it is called “alimony”). The rules governing spousal support are set out in the federal Divorce Act; these rules apply across all of Canada.
Spousal support is most common when one spouse makes significantly less money than the other. However, a judge may decide that a spouse with less income is not entitled to any spousal support. This may be because the lower income spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the marriage.
The amount of the monthly spousal support payment is determined based on a number of factors. The Government of Canada has listed many of these factors here. In general, a judge will consider:
The annual income of both spouses
The length of the marriage
The roles of each spouse during their marriage (Caregiver vs. Breadwinner)
Whether or not child support will be paid
Whether or not the spouse with the lower income sacrificed their power to make an income for a reason related to the marriage (for example, if a spouse decides to sacrifice professional opportunities to raise children they would be more likely to receive spousal support)
Spousal support is typically paid on a monthly basis over a defined period of time. A spouse may be obligated to pay support for as little as a few months to, at the longest, until the recipient spouse retires. The length of spousal support typically depends on the length of the marriage and whether or not there are children. One important distinction from child support is that the recipient of spousal support needs to consider these payments as a taxable income and declare them on their financial statements as such.
Since determining support payments can be difficult to do on your own, let us help you. You can determine your spousal and child support payment amounts with our free Support Calculator. The calculator has been developed based on the Government of Canada guidelines and the actual results of over 58,000 Canadian divorce cases.
Do I have to follow the guidelines?
Many divorcees ask us whether they need to follow the child and spousal support guidelines set out by Government. When it comes to child support, the answer is a definite Yes. The payment amount that the guideline prescribes is non-negotiable.
Spousal support, on the other hand, is not so cut and dry. The amount and duration of spousal support is most often determined after negotiation between spouses. In fact, 95 to 99% of divorcees are able to settle their divorce outside out the courtroom according to Canadian data.
There are many options when it comes to negotiating and paying spousal support. Many divorcees choose to waive their right to spousal support entirely. This is especially common for shorter marriages where it is unlikely that spousal support would be awarded by a judge. Other divorcees negotiate paying spousal support in a lump sum. Ultimately, whatever you negotiate will be finalized by creating a separation agreement. Creating your own separation agreement will replace your need to go to court.