Can Spousal Support Go Up If An Ex-Spouse Starts Making More Money After Their Separation or Divorce is Over?
What happens if you start making more money after you have finalized the amount of spousal support you’re paying to your former spouse?
If you are receiving spousal support from your former spouse, are you entitled to more spousal support if you spouse starts making more money after your separation or divorce is finalized?
Hi, my name is Thomas O’Malley. I’m an experienced family lawyer in Durham Region and the GTA.
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The Ontario family court reviews a number of factors and objective to determine whether a spouse’s post-separation increase in income affects how much spousal support they are paying to their former spouse.
A former spouse is not automatically entitled to increased spousal support when a spouse’s post-separation income increases.
The key is whether the payment of spousal support in any particular case is based on compensatory or non-compensatory grounds. Spousal support is based on compensatory grounds when a former spouse contributed to the other spouse’s career success by taking care of the home and/or the children while the other spouse advanced their career.
The right to share in post-separation income does not typically arise in cases involving non-compensatory claims since the primary focus of such claim is the standard of living during the relationship.
The spouse who is receiving spousal support may be permitted to share in post-separation increases in earnings if they can demonstrate that they made contributions that can be directly linked to the payor spouse’s post-separation success.
The nature of the contributions does not have to be explicit, such as contribution to the payor’s education or training. The question of whether the contributions made by the recipient specifically influenced the payor’s post-separation success will depend on the unique facts of every case.
A spousal support award is more likely to take into account post-separation income increases where the relationship was long-term, the spouses’ personal and financial affairs became completely integrated during the course of the marriage and the recipient’s sacrifices and contributions for the sake of the family and resulting benefits to the payor have been longstanding and significant.
When this type of long history of contribution and sacrifice by a recipient spouse exists, the court will be more likely to find a connection between the recipient spouse’s role in the relationship and the payor’s ability to achieve higher earnings following the separation.
In determining whether the contributions of the recipient were sufficient, the court should consider such factors as whether the parties divided their family responsibilities in a manner that indicated they were making a joint investment in one career, and whether there was a temporal link between the marriage and the income increase with no intervening change in the payor’s career.
If the skills and credentials that led to the post-separation income increase were obtained and developed during the relationship while the recipient spouse was subordinating their career for the sake of the family, there is a greater likelihood of the recipient deriving the benefit of post-separation income increases.
By contrast, the likelihood of sharing in such increases lessens if the evidence indicates that the payor spouse acquired and developed the skills and credentials that led to the increase in income during the post-separation period, or if the income increase is related to an event that occurred during the post separation period.
Here’s a really important point: Assuming primary responsibility for child care and household duties, without any evidence of having sacrificed personal educational or career plans, will likely not be enough to justify a spouse who is receiving spousal support to benefit from the other spouse’s post-separation income increases.
I discuss more details about whether a former spouse’s post-separation income increase will increase their spousal support payments to their ex-spouse in the next video.
If you have any questions about your separation, divorce or family law case and you would like our help, feel free to contact me on my Facebook law office page, that’s O’Malley Family Law, or call me at 905-434-8837 and I’ll point in you in the right direction.
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