Once you decide to legally separate or divorce, it is in your best interest to come to a mutual decision regarding a reasonable spousal support amount. If you cannot decide in a reasonable manner, the courts will step in and make the decision for you. The courts will first determine whether the entitlement for support is compensatory, non-compensatory, or contractual. The Spousal Support Guidelines will then be utilized to determine a reasonable amount of spousal support to be ordered.
The Guidelines do not tell the courts outright an exact amount to be ordered in specific situations. Rather, they help the courts determine “reasonable ranges” of support, and from there a rather complicated process is used to come up with a reasonable order for each individual case. You can never know what to expect from a court order for spousal support, though your lawyer should have tools to help you understand the process and estimate what may be ordered.
Even though the Guidelines are not legislated, they are used quite heavily by the courts when these complicated decisions must be made. There are two basic formulas that can be used, depending on the circumstances of each case.
Without Child Formula
If you and your spouse do not have children, this is the formula most likely to be used to determine an amount for spousal support. The courts will typically take the gross difference in income for 25 years of marriage and then award 1.5 to 2 percent of that difference. Support will typically last for six to twelve months for each year of marriage, with indefinite support being awarded to those married for more than 20 years. The “rule of 65” also states that indefinite support can be awarded when the years of marriage (over five years) and the age of the support recipient equal 65 or more when added together. I
Let’s look at an example:
Gary and Rhonda filed for divorce after 10 years of marriage. Gary earns a gross salary of $200,000 a year, and Rhonda earns a gross salary of $40,000 a year. What will Gary likely pay Rhonda in spousal support?
The difference between Gary and Rhonda’s gross yearly income is $160,000. Multiply that difference by 1.5 percent, and then by the number of years they were married. You come out with $24,000 as the amount Gary may be ordered to pay Rhonda. The court can award up to 2 percent of the income difference, which would be $32,000 a year.
How long is Gary likely to be required to make spousal support payments? The courts typically require spousal support to be paid for 0.5 to 1 year for every year of marriage, so Gary should be ordered to pay support for five to 10 years. The courts will consider the circumstances of their marriage to determine the exact length of time Gary would be required to make payments.
With Child Formula
This formula is used when there are children involved, since children are major expenses for the parent they live with. The courts will make sure that the parent paying spousal support has at least 40-46 percent of their income remaining after paying spousal and child support. The courts have more discretion when determining how many years spousal support will be paid, and the formula for this determination is quite complex. Different calculations can be used depending on the age of the children, the number of children, and the custody agreement.
Your lawyer should be able to calculate a “range of expected payment” so you have a general idea of what you may be expected to pay or receive, but you will have to provide some basic information for those calculations to be made.
Variations to the Rules
The courts will steer off course from these general guidelines in order to determine a lump sum amount, a periodic payment, or some other payment arrangement. Section 93(5) allows the court to change the amount to be paid from what is calculated following the Guidelines, or to change the length of time payments are ordered to be paid .
The Advisory Guidelines also list allowable exceptions which make it possible for courts to determine fair and effective orders that correlate to the specific needs of each case. For instance, the courts may make exceptions for difficult or unusual financial circumstances or debt owed by one or both parents. Some cases may involve other court orders for support, non-taxable payor income, or the care of special needs children.
Other exceptions may be made for a disability or illness suffered by the recipient spouse, and there may be a compensatory exception under the child support formula for shorter marriages. The parenting roles of each parent and the necessary reapportionment of mutual property may also come in to play .