Posts Categorized: Negotiation

“Ex-Spousal Support”

(Ex) Spousal Support* (1)

Spousal Support, (in my opinion) more accurately called Ex-Spousal Support (“ESS”), can be a stumbling block in your separation negotiations. Unlike discussions around child support or property division, where things may move along smoothly, when we start talking about ESS, things get hairy.

Simply put, nobody wants to pay ESS. If you are the payor, you know what I mean.

But as the payor, you really want to get through this and get on with your life, so you see it is as a necessary evil. To make things worse, it’s never clear how much we are talking about.

I explain to my clients that spousal support is not a black and white area of the law in Canada. It’s not like child support. I put it this way: “To calculate child support, you look up a chart called Child Support Guidelines and determine the amount owing next to the payor’s income along with some other factors that should be discussed with a lawyer.*(2) But for the most part, it’s black and white.”

You may think: “But spousal support can also be found on a chart called Spousal Support Advisory Guidelines.” These are “advisory guidelines” though. If you Google “Canada” and “spousal support,” the first link you will find is the Department of Justice (“DOJ”) website for Canada. On that site, the following information pops up:

Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses’ incomes after they separate. However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the relationship.*(3)

I draw your attention to the above sentences: ‘However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support.’ to reinforce my point – ESS is a gray area of the law.

If you continue to read the DOJ link, you will note that there are many other factors taken into consideration when determining ESS, including, but not limited to, the financial means and needs of both spouses as well as well as the length of the marriage.

As you continue to read, you learn that one purpose of ESS is, “to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage.”*(4)

At this point, the only thing that becomes clear is how tricky it is to assess how much ESS and for how long the ESS should be. The measure is until one is ‘self-supporting’ – but how do you calculate this magic number?

You may also have been told that there is a software called “Divorcemate” that family lawyers use to spit out ESS numbers. This is true. But, again, there are so many variables to take into consideration, variables that need to be input correctly.

Consequently, the multifold issues that crop up when quantifying ‘compensation’ (as the law puts it) really need to be discussed in detail with a lawyer (rather than a friend, or neighbour, or a friend of a friend).

If you are the recipient of ESS, I understand what you are going thorough.

When I was going through my own divorce, I was panic stricken at the thought that I might actually need ESS. I had to ask myself a lot of tough questions. (My theme song throughout the journey was Destiny Child’s Survivor: “I am a survivor; I’m gonna work harder; I’m gonna make it!”)

At the same time, I needed to keep in mind how much my ex-spouse really wanted this necessary evil part over with – as quickly as possible. That is, (as a collaborative lawyer) I also kept his interests in mind – in order to finish at a good place.

I am a collaborative lawyer who’s been there and back. I am well prepared to have these conversations with you. I know you need to talk about it. I also know your decision will have to be uniquely your own. Your solution has to be a customized one. Call me. I can help customize your solution.

*Notes
1. The term Ex-Spousal Support (“ESS”) is not a legal term.
2. For ‘other factors’ and legal information, please consult a family lawyer. The content of this blog is not intended to be legal advice and should not be relied upon or used as a substitute for consultation with professional advisors.
3. http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
4. From: http://www.justice.gc.ca/eng/fl-df/spousal-epoux/ss-pae.html
Judges must also consider whether spousal support would meet the following purposes:

1. to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;
2. to compensate the spouse with the lower income for ongoing care of children; or
3. to help a spouse who is in financial need if the other spouse has the ability to pay.
At the same time, the judge must consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.


Unconscious uncoupling and cleaning up the mess

A friend of mine, Cheryl (not her real name), sent me this note:

Dear Jane,

I am feeling lonely in my relationship and am not sure what to do. My husband is not interested in doing anything with me. I am taking courses and connecting with friends and he is mostly at home on the computer or playing video games. I try to connect and share, and he listens but doesn’t connect around it.

Other than me feeling lonely in my marriage, I have nothing to complain about. We get along fine when we are doing chores around the house and eating meals and stuff like that. He is a nice guy and has a good job; he doesn’t drink or anything like that. Am I expecting too much?

I am interested in your advice, just in case I wake up one day and feel sick and tired of feeling so lonely all the time.

Cheryl’s message made me think of how many people do this “unconscious uncoupling” thing… without even thinking about it. It starts with leading separate lives, punctuated by a few shared moments. Then the confusion and the mess and an overwhelming decision of what to do next.

At least, that’s how it happened to me.

Years ago, all I remember was just trying to get through each day, especially when the kids were little. Those were the days when the kids needed so much: lunches packed, uniforms ironed, laundry two and three times a day, their baths, their strollers, their appointments…

…And the mess, all over the place, all the time. All that work before (sometimes during) and after my own work hours. Most weekends, I was all over the map. From music lessons, birthday parties and soccer clinics, I had to buy a car with a GPS. On some lucky weekends, I had a husband (aka my weekend co-worker) to share the dishwashing, diapering and the driving.

Then one day I woke up and realized that the kids were teenagers. All of a sudden, the craziness came to an abrupt end. My husband started doing stuff on his own and so did I.

Pretty soon…BAM! We were living like Cheryl and her husband. Alone. Separate. Uncoupled, unconsciously.

As a family law lawyer, I know what usually happens next. But in my own story, I was blind sighted. Many others who come to me are also blind sighted when their husbands (as mine did) disclose one day: “I met someone” (or, “This is not working”, or “I am moving out”, or “I can’t do this anymore”). Of course, it could’ve been me saying all of this, but the mess and confusion that follow are the same.

What did I do?

Because I am a Collaborative Lawyer, and I really truly believe in doing what’s best for everyone (me, him, the kids – OMG the kids), my response to him was: “Let’s do this collaboratively.”

My only mistake at the time was to also say: “Let’s just do this without lawyers, ok?” After all, I am a Collaborative family law Lawyer. I know this stuff.

In hindsight though, I could have really used a Collaborative Lawyer who:

A) guided me through the mess and confusion with a caring voice;
B) focused me on my next steps; and
C) helped me clean up the emotional mess, by way of A) and B).

Call me! I will help you with all your ABC’s. I’ve been there. I can become your Collaborative family Lawyer that I wish I had.