How to Terminate Spousal Support or Alimony in BC
How to Terminate Spousal Support or Alimony in BC
Our Vancouver divorce lawyers know that spousal support is one of the least liked and most controversial areas of BC family law. Even teaching you how to terminate spousal support in BC is probably going to result in us getting a lot of hate mail, but oh well damned if you do, damned if you don’t.
Cases when paying it becomes most painful are when your spouse had an affair on you, left you and now wants monthly support. I have had to give the bad news many times to clients that we have a ‘no-fault’ system and the simple fact of one having an affair during the marriage will not affect spousal support. Unless the affair caused so much psychological trauma that you are unable to work. But that discussion is for another day.
This blog talks about realistic and legal ways to terminate spousal support in BC. More importantly, read below to find out how to stop spousal support from being ordered from the get-go. Before you can successfully ask for termination of spousal support, you need to note the important arguments that follow below. So sit tight and pay careful attention:
Table of Contents
- 1 How to Terminate Spousal Support After It Has Been Ordered in BC
- 1.1 How to Terminate Interim Spousal Support in BC
- 1.2 How to Terminate Permanent or Final Spousal Support in BC
- 1.3 Increase in Child Support Obligations
- 2 Stopping an Order for BC Spousal Support from the Get-Go
How to Terminate Spousal Support After It Has Been Ordered in BC
If spousal support or alimony has already been ordered and you are trying to terminate it, first answer this question: are you trying to terminate an interim order or a final order for spousal support?
How to Terminate Interim Spousal Support in BC
From the time you start your family law case until you go to trial, you may need temporary orders to get through. One of these orders is for interim spousal support or temporary spousal support. These orders provide an amount of monthly support to be paid until the trial. That amount may be too high or too low or completely wrong but on an interim basis, the judge is only supposed to do rough justice based on very limited facts in front of her/him.
So your spouse may get an order for interim monthly spousal support when in fact she/he may not be entitled to any spousal support. Most times, you need to wait until trial to ask for the interim order to be terminated on an interim basis either because your spouse has no entitlement to spousal support (see below) given the comprehensive facts of your case, or that she is under-worked or purposely unemployed.
At trial, the judge usually needs to make decisions on division of property, child support, extraordinary expenses, etc. The combination of these factors may make a judge come to the conclusion that no spousal support should be payable anymore. In order to terminate interim spousal support orders, you can make the following arguments:
- That interim spousal support should have never been ordered because your spouse was never disadvantaged because of the marriage and therefore, the interim order needs to be vacated and replaced with an order that your spouse is not entitled to BC spousal support;
- Show that since the interim order was made, your spouse was able to get better education or a job, and that the incomes are now more or less similar and therefore no spousal support should be payable;
- Show that since the interim order was made, and due to reasons beyond your control, your income has been reduced and you no longer have the ability to pay spousal support based on your current financial situation;
- If at the time of trial, your spouse ends up getting more on the property division, say she gets $300,000 and you get $200,000, you can argue that given the split of assets and her/him keeping more of the assets, there is no need to pay spousal support on top of everything else;
- Show that if you have to pay child support and extraordinary expenses, there will be little money left to survive on and therefore, spousal support should be terminated;
- If you have substantial debt at the time of the trial (assuming you went on no spending spree and the debt was not reckless), you can ask the judge to make an exception and either reduce or eliminate spousal support so that you can service all the debt (usually family debt) you need to pay in addition to all the other financial responsibilities you have.
How to Terminate Permanent or Final Spousal Support in BC
If the judge has ordered permanent spousal support in BC after your trial, there are a few circumstances where you can apply to terminate it. These are some of the common ones but there are other circumstances. You should always speak to a BC Spousal Support Lawyer to find out more about your rights and obligations, given the specific circumstances of your case.
Generally if you are over the age of 65, you can apply to terminate BC alimony based on retirement and inability to work. If after reaching the age of 65, your income will substantially decrease and encompass only pension and some nominal investment income, the court will likely either readjust or terminate spousal support based on future projection of your income. Note that in some cases, the courts have said that 65 may be too early to retire given the facts of the case. A more safe position would be if you are over 67ish.
If you spouse does not agree to terminate spousal support given your retirement, you will have to bring on an application at the BC Supreme Court or the Provincial Court for an order terminating your obligation to pay alimony to your spouse.
If after a final order of spousal support is made, you suffer from mental or psychological disability that would render you unable to work, or work less, you can apply to reduce or eliminate spousal support. Note that you will need to provide your medical records and possibly obtain a medical-legal opinion on the extend of your disability and how it affects your ability to work. A simple family doctor’s note will not be enough in most situations. Your doctor may be able to confirm your physical or mental issues, but he/she may not be able to give an opinion on how that affects your ability to work.
Remarriage or Re-cohabitation
If your spouse enters into a common law relationship or remarries, you could have grounds to terminate or reduce spousal support but it is not an automatic termination. Many people think if they remarry or their ex remarries, spousal support can be terminated but that is not the case.
This subject is quite complicated, I will try to make it simple. Please note:
If your Spouse Remarries:
- Your spouse remarries and his/her current partner earns more than you do and is able to support your spouse. In this situation you could ask for termination of spousal support. But only if the initial order was made on a ‘needs/means’ basis and not based on compensatory grounds. What does this mean? It is very complicated. Click on the aforementioned links to find out more.
- Your spouse remarries and his/her current partner does not earn more than you do and is not able to provide the standard of living you did. The obligation to pay spousal support will not likely terminate but may be reduced.
If You Remarry
You remarry and argue that having a new partner makes you have to spend more money on living expenses and therefore you are unable to pay the ex-spouse spousal support….. good luck. Likely won’t fly. The courts usually say that remarrying is a choice. Making contributions to a new relationship does not relieve one of obligations towards the old relationship. There are exceptions to this rule which are outside the ambit of this blog. It is best to consult with one of our lawyers to better understand your chances of terminating spousal support in BC.
If after the BC spousal support order was made, your spouse obtains better education and gets a better paying job, you can ask to reduce or terminate spousal support due to the change in his/her income after the initial court order was made. To do this, you will need to obtain financial disclosure from your ex-spouse/ You need to prove to the judge that there has been a change in your spouse’s income and therefore the previous order relating to spousal support no longer makes sense.
If your ex-spouse is earning an income similar or the same as yours, then you can ask for an outright termination of spousal support.
Increase in Child Support Obligations
If your children start going to an expensive university and you have to pay way more now for tuition and child support, you can apply to the Court for a reduction or termination of spousal support. This is so that you can afford your children’s higher expenses. These applications can be risky but they do have a chance to reduce or terminate spousal support or alimony in BC.
Underemployment or Unemployment
One of the objects of spousal support guidelines and family law is to encourage self-sufficiency and independence after a break down of a relationship. The law puts a positive obligation on couples to stand on their own feet after marriage as much as they can. So if you are in a situation where you feel like your ex is purposely underemployed or unemployed just so that she can get spousal support, you can make an application to the court and ask a judge to impute income on your spouse or terminate spousal support due to it being used for all the wrong reasons.
This topic is again quite complex but some examples of a successful application to terminate support based on underemployment or unemployment are as follows:
- Your ex keeps on saying she is going to school to get a degree but she pursues useless degrees, takes way longer to finish his/her courses and is generally using school as an excuse not to work;
- Your ex works part time when in fact she could very well work full time;
- You ex works at a job which is below her qualifications and pays her less than what she/he should be earning;
- Your ex pursues ‘too much’ education, meaning multiple degrees but not employment to become self-sufficient;
If you have just separated or your ex is asking for spousal support and there are no orders made yet, it is crucial that you consider the below information. You should consider whether you can stop an order from being made from the get-go so you do not have to fight against a spousal support order in the future.
Stopping an Order for BC Spousal Support from the Get-Go
The key and the biggest factor in successfully arguing that no support should be payable from get-go is proving that your spouse has no entitlement to spousal support.Most people think spousal support is only dependent on the difference in the incomes of a couple and the amount of time they were married or in a common law relationship. Wrong! (Trump’s voice). For anyone to get spousal support in BC, they have to meet and pass this two step test:
- That the recipient has entitlement to spousal support. Only if the answer is a ‘yes’, do you move on to the second stage:
- How much spousal support and for how long?
How to Prove Your Spouse is Not Entitled to Spousal Support:
Spousal support in BC is payable if (mainly) a spouse experienced disadvantages from the marriage or the break-down of the marriage or common law relationship. Let’s look at a couple examples to give you a better understanding:
Example 1 – No entitlement to spousal support:
You are both in your 20s or 30s. You both are educated and have jobs. You do not have any children together. When you got married, your husband was making more money than you and right now after separation, he makes the same or similar amount. You have also kept the job you had prior to marriage or something similar to it. You got married and a few years after marriage, you decided to separate. In this situation, it doesn’t appear that either you or your spouse were in someway disadvantaged because of the simple fact of marrying one another.
You did not forego educational opportunities or work opportunities during the marriage and now that you are separated, your situation is more or less similar to what it was prior to the marriage. Your marriage was also a couple/few years long so you weren’t deeply used to a new standard of living. In this scenario, there can be very strong arguments that there is no entitlement to alimony because you did not experience disadvantages during or after marriage. If there is no entitlement, there is no spousal support regardless of the gaps in incomes.
Example 2: Entitlement to Spousal Support:
You and your spouse met in your early 20s, got married, had a couple children, marriage lasted for over 10 years. You had to let go of your career or educational opportunities to raise the kids and stayed at home. While you did that, your spouse excelled at his/her career, made more money, got more education and was the bread winner for the family.
In this situation, the fact that you had to care for children, had to let go of so much of your own future and the fact that after 20 years you are not likely to regain educational or career opportunities means you have entitlement to spousal support in BC. If you meet the entitlement test, you can move to the second stage which is to determine the quantum and duration for alimony in BC.
The Amount and Duration of Spousal Support in BC
Once the entitlement test is met, you can move on to determining the amount and duration of spousal support. You can read all about that by clicking here, but in short, judges and the law usually use Spousal Support Advisory Guidelines to determine the amount and duration of alimony in BC by considering various factors such as:
- Length of marriage;
- Ages of the couple;
- Whether there are children involved:
- The gap in incomes;
- The need to become self-sufficient;
- Property and debt of the family and its division;
- Matching standards of living, etc.
Termination or opposition to spousal support is very complex and fact-specific. It is always better to set up a consultation with a lawyer to learn the proper strategy to terminate spousal support in your case. Contact our award winning spousal support lawyers at 604-974-9529 or get in touch.