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Why do we have spousal support (Alimony)? What is its purpose? Why should one spouse continue to support the other long after their relationship has ended?
Why Do We Have Spousal Support (Alimony)?
These are difficult and theoretical questions to answer. However, it is important to try to answer them. The answers will help determine when spousal support should be awarded, how much spousal support should be awarded and how long spousal support should continue.
There is no single answer to these questions. Much controversy exists as to how the law should approach the issue of spousal support. As a result of the controversy, the courts take several different approaches to awarding spousal support.
Take the stereotypical case of Holly Homemaker. She married her husband, Larry Lawyer, when both of them were in their early twenties. She stayed at home throughout the marriage, and looked after the home and the couple's two children. Meanwhile, Larry Lawyer worked long hours at the office, eventually becoming a senior partner at his law firm. Now, thirty-three years after getting married, the children have grown up and left home. Larry Lawyer has an affair with his new nineteen-year-old secretary. This results in Holly Homemaker and Larry Lawyer separating.
Should Holly Homemaker be entitled to spousal support? Most people would agree that she should be. But why? Well, perhaps it is because Larry Lawyer is a dastardly guy, whose adultery ruined the marriage. Perhaps Larry Lawyer should pay for being a bad guy.
However, basing spousal support on a spouse's bad actions is not a good idea. To see this, imagine that the situations were reversed. Suppose that instead of Larry Lawyer having an affair, Holly Homemaker, bored out of her mind from being at home all day now that the children have grown up, has an affair. Should this disentitle Holly Homemaker from receiving spousal support?
In Canada, Holly Homemaker's adultery would not stop her from receiving spousal support. In fact, there have even been cases where a wife has stabbed her husband and still received spousal support. This is because fault is irrelevant to the award of spousal support.
While some people may object to Holly Homemaker receiving spousal support after having an affair, one can also ask, why should she be disentitled from receiving it when she was a faithful and good wife for thirty-three years and only made one mistake?
So, fault is not the reason why Holly Homemaker should receive spousal support. Why then should she receive it? Without spousal support, the economic consequences to Holly Homemaker of the separation would be severe. Normally, if someone is unable to support herself, the state will step in and support her. Why, in this case, should it be different? Why should Larry Lawyer still have to support Holly Homemaker?
Well, throughout the marriage, both Holly Homemaker and Larry Lawyer made choices about the roles they would perform. They decided that they would be better off if Holly Homemaker gave up her job and spent her time looking after the home and raising the kids while Larry Lawyer worked. But by making this choice, Holly Homemaker took a big gamble. She achieved a high standard of living due to Larry Lawyer's success in his career; however, to enable that, Holly Homemaker has become virtually unemployable. While she was married, she was well off; however, when her marriage fell apart she may well be unable to support herself. She has not worked for many years prior to her separation. As a result, her employment prospects are dismal.
A court will award Holly Homemaker spousal support. It does this to compensate her for her loss of earning potential as a result of her leaving the workforce. This is known as "compensatory spousal support." Compensatory spousal support provides support to compensate a spouse for economic disadvantages that have occurred due to marriage or cohabitation.
When determining how much compensatory spousal support to award to Holly Homemaker and for how long to award it, the court will look at the impact of her relationship with Larry Lawyer, the roles performed by each of them during cohabitation and how these factors affected Holly Homemaker's ability to earn income. In our case, Holly Homemaker stayed at home and gave up her career because of her marriage. This has dramatically reduced her earning potential. As a result, a court would award her generous spousal support and for an unlimited time.
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HOW WE CAN HELP YOUObtained Spousal Support
A client came to Behrendt Law Chambers to represent her in a divorce against her self-employed husband. Her husband refused to pay her spousal support, claiming that his business was not earning much money. We managed to show that his business was earning more than he claimed and obtained spousal support for his client.
Defended Spousal Support Payor
This is an era of record high spousal support awards. In one recent case, a judge awarded 60% of the family income to go to the wife as combined spousal support and child support for 2 children. Nowadays judges don't ask whether there is an entitlement to spousal support, this is assumed. The judges only ask "how much spousal support?" Behrendt Law Chambers has represented many spousal support payors, and successfully minimized the amount of spousal support they needed to pay. Given that the amount of spousal support awarded is such a grey area of family law, this is one area in which a good lawyer can make a difference in your case.