Vancouver Mandarin Chinese Spousal Support Lawyer
Spousal support is one of the major issues of a Canadian divorce. It is a complex subject and is often hotly contended and contested.
Get help for your spousal support issues in the language you’re most comfortable in by coming to our law office. We speak fluent Mandarin Chinese, and are well-versed in the issues that can arise for Chinese-Canadians and Chinese immigrants.
What is Spousal Support?
Spousal support is money paid by a wealthier spouse during the course of a divorce. It was originally created to avoid casting former homemakers into poverty simply because the marriage fell apart, or spouses who supported their significant other’s careers to the detriment of their own. It can also bridge severe economic disparities between spouses.
Spouses can apply for interim support, called alimony, while the divorce is being negotiated, as well as for longer-term support, called spousal support.
Most spouses do not enjoy paying spousal support, and thus it can be a hot point of contention during divorce negotiations. Yet it is required because marriage is considered, under British Columbia law, to be an economic partnership built upon the premise of mutual support.
How is Spousal Support Calculated?
There are two formulas for calculating spousal support in British Columbia.
One is the formula for couples without minor children, and thus without child support. The amount will range from 1.5 to 2% of the difference between the spouse’s gross income for each year of marriage or cohabitation, up to a maximum of 50%.
If the marriage lasted 25 years or more, the range is fixed at 37.5% to 50% of the income difference. The goal in the longer marriages is to equalize spousal income.
If child support is involved in the divorce settlement, then the formula is different. First, the individual net disposable income (INDI) of each spouse must be determined. The wealthier spouse’s child support payments are subtracted from their income as are their taxes and deductions. The financially disadvantaged spouse subtracts their spouses and deductions from their income, but adds government benefits and credits.
These two incomes are added together. The lower-income recipient then gets an amount equal to 40 to 46% of the INDI.
There are some exceptions. For example, if either spouse’s income is above $350,000 a year then it is possible to deviate from these guidelines. The illness or disability of either spouse can also have an impact, as can certain other special circumstances.
Often, we use a software program to ensure that all the different support factors are taken into account.
How Long Do I Have to Pay Spousal Support?
It depends on how long the marriage was. In a marriage without children, if the marriage is 20 years or longer in duration, or if the marriage has lasted more than five years when years of marriage and the age of the support recipient added together total 65 or more, then you can expect indefinite support.
In a marriage with children, it could be the longer of the length of the marriage or the date the youngest child finishes high school, or one-half the length of the marriage, or the date the youngest child starts full-time school.
Shorter marriages create shorter obligations. A ten year marriage may result only in 5 to ten years of spousal support being paid.
How Do I Get Out of Paying Spousal Support?
Spousal support isn’t guaranteed. Your spouse has to ask for it, and then a judge must determine that they’re eligible for it. That’s if your case goes to court. Not all spouses are required to pay spousal support. Either spouse may apply for up to two years after getting an order for a divorce or separation.
To be eligible to ask for spousal support, you must be married, you must have lived together in a marriage-like relationship such as a marriage or common law relationship or adult interdependent partnership for at least two years, or you did so for less than two years but have children.
The court looks at many factors to determine whether spousal support should be awarded. For example, a spouse who stayed home with the children is more likely to receive support. So is a spouse who worked to put their now-higher earning spouse through school. The courts will also look at whether one spouse was financially dependent on the other, or whether one spouse might have a hard time getting a job directly after the divorce. In some cases spousal support is meant only to help the spouse get on their feet, providing an income so they can retrain or go to school.
Most people cannot get spousal support if they have already moved in with another significant other.
If you are negotiating or settling your case, you should think of spousal support as a negotiable point. Your spouse may be willing to forgo spousal support in return for something else. In addition, your spouse may be willing to accept one big lump sum payment instead of monthly payments. As long as your case hasn’t gone to court yet, you do have options. Unlike child support, spousal support isn’t mandated by law, though judges will often award it if the case goes into litigation.
A spouse can lose the right to spousal support through certain bad behaviors. This is very rare, but you can always speak to us if you think your spouse’s behavior might warrant denying support.
Can Spousal Support Be Modified?
Yes. If you have experienced a significant change in circumstances, such as a job loss, illness, or disability, then you can ask the court to modify a spousal support order. Generally you will need your lawyer to file a motion for a modification. Modifications are not automatic.
You may also have to prove that the change was unforeseen. If you chose to change your own economic circumstances, for example, such as by quitting your job to go back to school, then the courts may not allow you to reduce your spousal support.
What is the Difference Between Compensatory Support and Non-Compensatory Support?
When support is compensatory, it is meant to address contributions that an economically disadvantaged spouse made to the marriage.
Your spouse might have done this by keeping house, raising the children, putting you through school, or even contributing to your business. The courts recognize that these contributions matter, and contributed to the wealthier spouse’s success. In addition, the law says that the spouse is still entitled to the same or similar standard of living as member of a dissolving economic partnership.
The non-compensatory model is about financial need. A long-term marriage with a spouse who served as a homemaker often places that spouse in a position that makes it difficult, if not impossible, to join the labor force in a meaningful way, or who needs financial help getting their needs met while they try to pursue education or training that will allow them to enter the labor force.
Non-compensatory spousal support might also apply to spouses who immigrated to Canada and who are not yet able to seek employment due to a language barrier or problems getting their prior professional skills and training recognized in Canada. If you signed a sponsorship agreement to bring your spouse over you might well have to pay non-compensatory support.
Often, the type of support makes little difference to the amount set or the length of time that the payor will be obligated to make payments.
Either or both frameworks may be used to justify support. Neither is often enough on their own. This is one of the issues that makes negotiating and setting a support agreement so difficult.
How Do I Get a Spousal Support Order Enforced?
Court ordered spousal support must be paid by law. If both you and your spouse are in Canada and your spouse is refusing to pay then you can ask the courts to enforce the order, which they can do with a variety of sanctions and penalties. Essentially, the non-compliant spouse can be held in contempt of court.
If your spouse has gone back to China or Hong Kong and is refusing to pay then there is very little to be done. This is why we often encourage spouses who need support to accept or even propose a lump sum support payment from their spouses, instead of pursuing a monthly or annual payment. While it is not always possible, it is often a viable strategy in high net worth divorces where enforcement could be an issue.
Get Help Today
Need help putting together a divorce settlement you can live with? Our team has navigated some of British Columbia’s toughest divorces. We’re also aware of many of the issues that can come about in an international divorce, and are adept at navigating them.
We are responsive, caring, and ready to help you in the language of your choice.
Chinese Lawyer Vancouver serves clients in Vancouver, Abbotsford, Langley, Surrey, and White Rock. Call to set up an appointment today.
