How to not pay spousal support in British Columbia

Spousal support. Alimony. Spousal maintenance. Whatever term you use, it is important to know that it is not an automatic right when a relationship ends. In some situations, there is no entitlement to spousal support. In other situations, there may be entitlement to spousal support but legitimate, legal ways to minimize or avoid paying spousal support. 

Get expert legal guidance on spousal support with Onyx Law Group. Our experienced spousal support attorneys will provide you with the trusted advice you need to navigate the complex world of spousal support and achieve a fair outcome.

What is spousal support?

Spousal support is money paid by one former spouse to the other after separation or divorce. It is paid by the spouse with the higher income to the spouse with the lower income (the “recipient spouse”). The purposes of spousal support are to:

• prevent a spouse from experiencing economic hardship due to the breakdown of the relationship;
• share financial consequences that arise from caring for children (separate from the obligation to pay child support);
• compensate a spouse who was financially disadvantaged during the relationship (for example, if one spouse stopped working to take care of children, or one spouse moved to a new city or country to advance the other spouse’s career); and
• help a spouse become financially self-sufficient within a reasonable period of time. 

Essentially, the overall objective is to address economic inequality between ex-spouses. Alimony helps reduce financial hardship so the lower income earning spouse or dependent spouse can become self-sufficient.

Who is eligible?

When a relationship ends, a person is eligible to claim for spousal support if they and their partner were: (1) legally married, (2) lived together as a couple for at least two years, or (3) in a relationship of some permanence for any length of time and had a child together.

That means both married spouses and partners in a common law relationship can be eligible to claim spousal support. Common law spouses and couples who had a child together apply under the BC Family Law Act. Legally married spouses can apply under the Family Law Act or Canada’s Divorce Act. 

Proving entitlement to spousal support

An eligible spouse is not automatically entitled to support. They must first demonstrate entitlement to support on one or more of the following grounds:

• Compensatory: to offset disadvantages or loss of opportunity experienced by one spouse during the relationship or because of the relationship’s breakdown (for example, child care responsibilities that prevented one spouse from building their career).  
• Non compensatory: one spouse needs financial support, and the other spouse has enough income to pay. 
• Contractual: a legal agreement saying they are entitled to support on separation or divorce. 

The court can also consider factors, such as income, age, health, and childcare requirements in determining entitlement to support. 

How much spousal support and for how long?

Only after entitlement is established do the issues of “how much support” (amount) and “for how long is support paid” (duration) need to be considered. Spousal support payments can be negotiated by former spouses as part of a separation agreement, or, if they can’t agree, the former spouses can ask a judge to decide entitlement, amount, and duration for them. In either situation, the Spousal Support Advisory Guidelines will be relied on as a starting point. It contains detailed rules and formulas for calculating support payments and determining the appropriate duration. 

How to minimize or avoid paying spousal support

There are legitimate ways to reduce or avoid spousal support. Before discussing them, it is crucial to emphasize a few “don’ts”. First, don’t hide income or assets in an attempt to defeat a support claim. Second, don’t withhold income information that you are legally required to produce to your ex-spouse. Third, don’t improperly manipulate income (for example, postponing corporate income/dividends, inflating business expense deductions, hiding trust income). Lastly, avoid deliberate unemployment or underemployment. 

BC courts do not look favourably on those types of misconduct. The court can impute income to you if you do any of these things intentionally to undermine your former spouse’s claim or to avoid paying spousal support. You will be ordered to pay support based on that imputed income level. 

Another key point for those who are legally obligated to pay spousal support pursuant to an existing spousal support agreement or support order made by the court: You must make good on payments as agreed or ordered by the court, until the set end date (if one was specified) or until the agreement or order is changed or terminated. Failure to do so will get you in hot water with the Court. 

If your circumstances or your former spouse’s circumstances have changed, keep following the payment terms but reach out to a divorce lawyer ASAP to talk strategy. Depending on your circumstances, it may be possible to renegotiate the support agreement or apply to the court to vary or terminate the existing spousal support order. 

Cohabs and prenups

There are several viable strategies of avoiding spousal support. One of the best strategies is to sign a cohabitation agreement or marriage agreement in the early days of your relationship. A cohabitation agreement is for partners in a common law relationship who do not intend to marry. It can be made before or after you move in together. A marriage agreement—also known as a “prenup” or “prenuptial agreement”—is for those who are or intend to get legally married. Both types of agreement can be used to either limit support or waive entitlement to claim support altogether should the relationship end. 

If you are considering a cohab or prenup, it is highly recommended that you seek legal advice from an experienced family lawyer, and that your partner also receives independent legal advice. A cohabitation agreement or marriage agreement may be unenforceable if one or both of the parties did not have independent legal advice before signing. Effective independent legal advice can ensure that parties understand their rights—including the potential right to claim spousal support if the relationship ends—before they waive them. It also removes any taint of unfairness, undue influence, unconscionability, or duress from the circumstances leading to the signing of the agreement.

Roles during the relationship

As discussed above, spousal support is intended to reduce financial inequality between former spouses and to compensate for financial hardship or disadvantages suffered by one spouse as a result of the relationship. So, a way to avoid spousal support is to avoid creating financial dependence or economic hardship for one spouse in the first place. 

This can be promoted by ensuring both spouses are gainfully employed to the best of their abilities. If you have children, share child care responsibilities as equally as possible so that there is no disproportionate disadvantage to one spouse. Take turns making sacrifices to support each other’s careers. If one spouse has a career set-back, illness, or injury that impacts income-earning potential, do what you can to encourage them, help them get well, retrain for a new job, etc. If both spouses leave the relationship on relatively equal financial footing, there is less of a basis—or no basis—for spousal support.

Separation Agreements

Unlike child support, spousal support can be waived in a separation agreement. Mutual spousal support waivers are often used, which means both spouses agree to give up any right to claim spousal support from the other. Generally speaking, such waivers are worded so that they apply now and in the future, even if financial circumstances change after the agreement is signed (for example, if in the future, one spouse loses their job or gets sick). 

It is also possible to limit the amount and/or duration of spousal support in a negotiated separation agreement. For example, spouses can agree that some support is fair, due to financial need or on compensatory grounds, but agree that support payments are time limited (for one-year post-agreement; until the parties youngest child starts school, until the recipient spouse remarries or moves in with a new partner, etc.). Another option is to agree to a one-time lump sum payment instead of ongoing monthly payments to satisfy any claim for spousal support.  

The comments about independent legal advice in the section above on cohabs and prenups apply with equal force to separation agreements. Without independent legal advice, there is a risk that the court will set the separation agreement aside on the basis that one or both of the parties did not know their legal rights or understand what they were agreeing to. Talk to an experienced family lawyer before signing anything, and make sure your ex-spouse has the opportunity to do so as well. 

Note that division of family property and debts can also have an impact on spousal support. Spouses can agree to reduced support or no support in light of the equalization payment to be made. A significant equalization payment may eliminate financial need or ameliorate any hardship. In fact, if spouses can’t agree and go to court, the judge will use the Spousal Support Advisory Guidelines as a starting point but also consider of all the facts and other circumstances of the case, including division of family property and debt, in determining spousal support. 

Renegotiate, vary or review

What if you are already paying spousal support pursuant to an existing spousal support agreement or support order? It is possible to avoid paying spousal support on an ongoing basis if you take appropriate steps to either renegotiate the agreement or apply to the court to vary or review. Generally speaking, a material change in circumstances must have occurred to warrant alteration of spousal support. Common reasons for asking spousal support to be reduced or terminated include: 

• Payor spouse loses job 
• Payor spouse’s income goes down
• Payor spouse becomes ill or retires 
• Recipient spouse’s income increases
• Recipient spouse is refusing to work or underemployed (i.e., not making reasonable efforts to become self-sufficient)
• Recipient spouse has re-partnered or remarried. 

The right to seek a change and the likelihood of success depend on many factors, including the wording of the existing support order or agreement and whether the recipient spouse continues to be in financial need. You should talk to a lawyer about your options if you want to change or terminate an existing support order or agreement. 

Need trusted legal advice on spousal support payments?

Spousal support is an extremely complicated issue. It’s important to seek professional legal advice when dealing with spousal support matters. There are legitimate ways to reduce or avoid paying spousal support, but you must tread carefully in this area. The lawyers at Onyx Law Group have extensive experience in working with separated spouses and the Spousal Support Advisory Guidelines. Reach out to us for an initial consultation to learn more. We will give you clear advice about how spousal support applies to your post separation life.