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?

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.

However, Holly need not have been a traditional homemaker to be entitled to compensatory spousal support. Even if she had stayed in the workforce, she may have made other sacrifices during the marriage to accommodate Larry Lawyer’s career. For instance, if Larry had been transferred to another city, Holly may have given up a promising job so that Larry could accept his transfer. Or, Holly may have turned down a promotion to a demanding job, so that she could spend more time with the children. In cases such as these, Holly would be also entitled to compensatory spousal support.

In fact, Holly need not to have given up something for Larry specifically, to be entitled to compensatory spousal support. For instance, she may have helped him start his own law firm, or entertained clients with him. Although she has not made any sacrifices to her career, Holly would be still entitled to spousal support to compensate her for her contributions to Larry’s career. However, in such a case, a court would award much lower spousal support to Holly than if she had been a traditional homemaker.

Compensatory spousal support is the primary reason that courts award spousal support. A second reason why courts award spousal support is where the spouses previously agreed to it in a marriage contract or cohabitation agreement. This is known as "contractual spousal support." So, if Holly Homemaker and Larry Lawyer had a marriage contract requiring Larry to pay her half of his income upon separation, the courts would enforce this contract.

However, what if Holly Homemaker had signed a marriage contract that stated she was not entitled to any spousal support? Would the courts enforce this contract, and deny her spousal support? No.
A court would find such a marriage contract unconscionable, and would award compensatory spousal support to Holly. The reality is, if a marriage contract provides for spousal support that is significantly less generous than what a court would award, the court generally will not enforce the contract.

Now let us look at a more modern marriage than Holly Homemaker’s and Larry Lawyer’s. Cathy Careerwoman and Bob Businessman are career-oriented people, who meet, fall in love and get married. Both of them work long hours and make similar incomes. They split the household chores equally. They split the household expenses equally. They do not have children. After three years, Cathy Careerwoman falls ill and has to leave her job. It is unlikely that she will ever be able to work again. Shortly afterwards, Cathy Careerwoman and Bob Businessman’s marriage deteriorates dramatically, and they separate. Is Cathy Careerwoman entitled to spousal support?

Cathy Careerwoman is unemployable and unable to support herself. Without spousal support, Cathy Careerwoman’s standard of living will drop dramatically when she separates. This is the same situation that Holly Homemaker found herself in when her marriage ended. However, there is one big difference between Holly Homemaker and Cathy Careerwoman. The economic consequences suffered by Holly Homemaker are due to the role she assumed during her marriage. However, the economic consequences suffered by Careerwoman are due to her illness.

It is very controversial whether Cathy Careerwoman should be entitled to receive spousal support. After all, normally an ill person is supported by the state. Why should Bob Businessman have to support Cathy Careerwoman after their separation when he was only married to her for three years? However, the courts have ruled that Cathy Careerwoman is entitled to spousal support.

Why is Cathy Careerwoman entitled to spousal support? Unlike Holly Homemaker, there is nothing for which to compensate Cathy Careerwoman. Cathy Careerwoman did not raise the children; she did not do more housework than Bob Businessman; she did not make any sacrifices to her career for Bob Businessman; nor did she further Bob Businessman’s career in any way. Well, the courts have found that there is a third category of spousal support that can be awarded. This is known as "non-compensatory spousal support."

Non-compensatory spousal support is basically a catch all category, for cases where no compensation is owed and where there is no contract between the spouses. Non-compensatory spousal support is awarded in this case simply because Cathy Careerwoman needs it and Bob Businessman can afford it. In short, this is a "basic social obligation" model of spousal support. The mere fact that Cathy Careerwoman and Bob Businessman married is enough to create a support obligation.

Thus, we can see that there are three basic reasons why we have spousal support. The first reason is to compensate people like Holly Homemaker for the economic sacrifices she made for her marriage, or for the contributions she made to Larry Lawyer’s career. The second reason is because there is a marriage contract or cohabitation agreement that requires spousal support to be paid. The third reason is for people like Cathy Careerwoman, who need spousal support even though she is not entitled to any compensation. While the first two reasons to award spousal support are generally accepted as fair, the final reason is quite controversial.

HOW WE CAN HELP YOU

Obtained 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.