Before a judge decides on the amount and duration of spousal support, entitlement to support must first be established. A disparity between the parties' incomes is a factor to be considered but does not automatically mean that the spouse with the lower income is entitled to support. In one of our previous posts, we discussed how entitlement to spousal support is determined.
If entitlement is established, then the judge can move to a second stage of legal analysis: determining the amount of support and how long it will be paid. While many factors can affect the amount and duration of support, here let us focus on how child support can affect spousal support orders.
Spousal support is generally based on a division of the "Independent Net Disposable Income" (INDI). The INDI is the pool of money available from both spouses after deducting income tax, EI and CPP premiums, other expenses such as professional membership fees or union dues, and child support payments.
The Federal Spousal Support Advisory Guidelines provide a "with child support" formula and a "without child support" formula for calculating the amount and duration of spousal support. The guidelines state the following with regard to the "with child support" formula:
- Spousal support is an amount that will leave the recipient spouse with between 40 and 46 percent of the spouses' net incomes after child support has been taken out.
In some cases, once child support payments have been deducted from the payor's income, the parties' respective contribution toward the INDI will already approach equalization and there will be little or no spousal support payable, regardless of entitlement.
Compared with the "without child support" formula, the "with child support" formula is significantly more flexible and complex when it comes to duration of spousal support. Often duration is not specified when the "with child support" formula is used. Different child custody situations can result in a variety of durational ranges.
Generally, the amount and duration of spousal support increases with the length of the marriage, but length of marriage is not as relevant when the "with child support" formula is used. The Advisory Guidelines also note that while "length of marriage" is a convenient term for calculating support, a more accurate term is "length of cohabitation" because pre-marital cohabitation may also be considered when determining spousal support duration.
For more on the rules for establishing the duration of spousal support, please see Kirk Montoute LLP's previous post, "Things you should know about spousal support guidelines in Alberta."