Determining an appropriate amount of spousal support has been characterised as an art more than a science.
However, in a recent paper by Mackinnon J and Murray, there has been an excellent attempt to put some science into the issue of spousal support. The authors analysed all trial judgments in Ontario between January 1, 2002 and December 31, 2003 in which spousal support was awarded. From this they found that there is indeed a dominant range in which spousal support awards fall. The specifics of what the authors found are:
A. The largest variable affecting the amount of spousal support is whether child support is being paid.
B. Where no child support is being paid, the dominant range of spousal support can be calculated as a percentage of gross family income or net disposable income (net disposable income is income after deductions for income tax, EI, and CPP – this is an important figure, as spousal support is taxed, but child support is not). Gross family income can be calculated without the assistance of computer software, which makes life easier.
C. Where no child support is being paid, most awards of spousal support bring the recipient’s share of gross family income into the 34 – 43 percent range. The comparable range of net disposable income is 36.6 – 44.5 percent.
D. If no child support is awarded, spouses’ incomes are rarely equalized.
E. Where both spousal support and child support are paid, gross family income calculations are not helpful, but net disposable income calculations are. There are 5 basic categories of cases where both spousal and child support are being paid:
1. Shared or split custody. In these cases, net disposable income is divided approximately equally between the spouses.
2. One child living with spousal support recipient. In these cases, the spousal support recipient generally receives 45 to 50 percent of the net disposable income.
3. Two children living with spousal support recipient. In these cases, the spousal support recipient generally receives 55 percent of the net disposable income.
4. Three children living with spousal support recipient. In these cases, the spousal support recipient generally receives close to 60 percent of the net disposable income.
5. Children in care of spousal support payor. In these cases, the custodial parent generally retains over 60% of the net disposable income. Generally the spousal support recipient receives as much spousal support as if there were no children.
F. Additionally, there are several factors that tend to move spousal support awards outside the dominant range. (These factors exist in cases inside the dominant range, but to a lesser degree or together with offsetting factors).
G. The factors causing spousal support to fall below the dominant range are:
1. Child-related factors. A lot of these cases are cases where the spousal support payor is also the custodial parent.
2. Diminished employability. This is where the spousal support recipient has difficulty finding a job – for instance, due to disability or lack of education. This can also lead to spousal support to fall above the dominant range.
3. Delay with pre-trial payments. If the spousal support recipient delays bringing the matter to trial and the spousal support payor faithfully pays spousal support, spousal support will be lower.
4. High income of payor. If you earn more than $150,000 per year, your spousal support, as a percentage of net disposable income, will be lower.
5. Limited means and/or needs. If you don’t earn much, there just isn’t enough money to pay as much spousal support. In these cases, the total family income was in the $45,000 to $50,000 range.
6. Unreasonable efforts to contribute to one’s own support. Obviously, if you’re not trying to help yourself, the court’s not going to be inclined to help you.
H. The factors causing spousal support to fall above the dominant range are:
1. Child-related factors. If the children have unusually high special expenses, such as for post-secondary education, spousal support payors will end up paying more.
2. Diminished employability. This was discussed under factors that lead to spousal support falling below the dominant range.
3. Property-related disparities. If you try to be clever and go bankrupt to deprive your spouse of property, the court will compensate with spousal support.
4. Delay with sporadic pretrial payments.
I. One important point to note is that the length of cohabitation or marriage seems to have little effect on the amount of spousal support awarded.
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