This article is a continuation from our article on spousal support basics which can be found here.
Once spousal support is in place, how does it change as time passes?
Once spousal support is documented by spouses, by court order or agreement, it will continue until some new condition arises. This article will cover 4 of the ways that spousal support can change:
- A specified hurdle is crossed – you and your former spouse may have agreed or been court ordered to pay support for a certain number of months or years, or even until a certain event occurs like remarriage, or job retraining. The language of the documentation is very important when trying to figure out how the future of changing or ending support looks. If there is this stated end point, there’s often a couple options for how the end point will look:
- Get a new court order which changes the terms of the support or terminates it altogether.
- Change by agreement – you and your former spouse may agree on the change or end of support
- Death – in the event of the death of the recipient, support will end, but if the payor of support dies, it can get complicated as to whether support will continue to be payable by the deceased’s estate or by other sources of money life insurance proceeds.
How does a person know if they’re eligible for a change or end to their support?
First, I want to distinguish 2 types of changes to spousal support. To be eligible to change or end support, the applicant will need to fit into one of 2 types of situations. They will either need to be eligible for a “review” or for a “variation” of spousal support.
If spousal support is to be “reviewed” – it generally means that something about the award will be looked at afresh in the future. It may be the entire question of spousal support, meaning entitlement, how much, and how long – or it may be just one particular portion of the award.
In any event, it’s a fresh look at support based on a future set of circumstances. For instance, it may be that at a certain point the court wants to look at how self-sufficient the recipient is, or how their career advancement has come along, or something like that.
If there’s to be a “variation” of spousal support, it means that the person applying for the change has to prove that there’s been a “material change of circumstances” for either spouse in order to justify their request.
Of course, this starts to get very complicated, but it’s important to know that there’s hurdles to cross to be able to change support at a future date.
What is a material change of circumstances?
This is another legal term, just like that word “entitlement” in other blog posts.
Again, this material change of circumstances is required to be eligible to vary spousal support.
The Supreme Court of Canada has set out the standard for the meaning of this term – it means that the change is substantial, continuing, and “if [those circumstances were] known at the time, [it] would likely have resulted in a different order”.
Here are some examples:
- Change of income of one or both former spouses
- Losing a job and being unable to continue payment.
- Recipient spouse’s income now exceeds the paying spouse’s income where it didn’t before.
- Self-sufficiency has been or ought to have been achieved by the recipient.
- Re-marriage of the recipient spouse.
- Child support has newly ended, and the recipient spouse wants to increase spousal support.
How do spouses go about negotiating changes to spousal support?
All of the negotiation options available to newly separated spouses are open to spouses seeking to vary spousal support.
If former spouses are both agreeable to discussing the topic, they can use processes like we offer in our office such as Mediation, Collaborative Law, or even out-of-court settlement-focused lawyer negotiations.
There are occasions where spouses are not able to sit down together, and if that’s the case, then a court application may be necessary
Henka Divorce Law & Mediation is a Collaborative Law and Family Mediation firm that helps families thrive as they transition to separation, divorce, or cohabitation. Understanding that every journey is different, we guide families through the right legal or mediation process that fits their unique situation.
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