Page 6 - BEST MAGAZINE FALL 2018

6
THE BEST MAGAZINE FALL 2018
ECONOMÍA Y FINANZAS
SPOUSAL SUPPORT
WHAT IS IT, WHO PAYS AND MORE IMPORTANTLY,WHYBY CLAUDIA FALQUEZ-WARKENTIN • LAWYER •
By far, the most misunderstood and thorny topic in the event of separation is spousal support.
The notion that one would have to financially support the ex-spouse after separation, is one of the toughest sells in Family Law to a client, in particular in high-conflict situations.
When spouses separate, usually the desire to put a final end to the battle and move on with their lives, separate and apart, ranks high on their priorities. Against that light, having to pay spousal support is seen not just as insult to injury, but as the inability to untie the knot, making achieving finality but just a dream pipe down a long road.
WHO DECIDES?
Unless the parties consent, which is usually strongly resisted, a court of competent jurisdiction may make an order requiring a spouse to:
1. Secure and/or pay;
2. Such lump sum and/or periodic
sums,
3. as the court thinks reasonable for the support of the other spouse.
UNDERLYING THE NOTION IS THAT EVERY SPOUSE HAS AN OBLIGATION:
1. to provide support for himself or herself
2. for the other spouse
3. in accordance with need, to the extent that he or she is capable of doing so.
WHO IS A SPOUSE
Under the Divorce Act, spouse means either of two persons who are married to each other.
Under the Family law act, it includes either of two persons who are not married to each other and have cohabited:
(a) continuously for a period of not less than three years, or
(b) in a relationship of some permanence, if they are the parents of a child
FACTORS THE COURTS TAKE INTO ACCOUNT
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitation; and
(c) any order, agreement or arrangement relating to support of either spouse.
DOES IT MATTER WHO IS AT FAULT
No. The law is clear that in making an order...... the court shall not take into consideration any misconduct of a spouse in relation to the marriage.
THE OBJECTIVES OF SPOUSAL SUPPORT ARE TO:
Spousal support seeks to recognize the contributions both parties made to the relationship based on the following considerations, by all means not exhaustive, in the analysis of support:
• Standard of Living during marriage • Loss of earning capacity during
marriage continuing after
dissolution
• Child care and impact on earning
capacity
• Career advancement and
stagnation of the other • Investment in the career
advancement of the other
to his/her detriment
• Promote the economic self-
sufficiency of each spouse, in so far as practicable
In understanding the rationale for how the law operates the hope is to eliminate resistance and avoid making the dispute in a separation worse.
ECONOMY AND FINANCE