One of the most difficult questions in family law can be answered with a response that every family law client despises; it depends.
I have previously written about the Spousal Support Advisory Guidelines, which guidelines were prepared in 2008.
The Spousal Support Advisory Guidelines (or SSAGs, as they have come to be known) provide us with recommended ranges for both quantum and duration of spousal support.
The SSAGs clearly tie the duration of support to two factors; duration of the cohabitation and the ages of the children.
The longer the cohabitation, the longer the recommended duration of spousal support. If the period of cohabitation exceeds 20 years or the rule of 65 is reached (age of recipient at separation plus duration of cohabitation equals or is greater than 65) then the SSAGs will recommend that spousal support be payable for an indefinite period of time, subject to variation and possibly review.
“Indefinite” does not mean “forever”, and spousal support would be reviewable in the event of a material change in circumstances, such as the payor’s retirement or an involuntary reduction in income.
The “easier” cases are, firstly, the short-term marriages where there are no children and, secondly, the long-term marriages where there are children and a spouse has been economically disadvantaged as a result of the roles assumed by the spouses during the marriage (for example, the traditional marriage involving a working spouse and a stay-at-home spouse). In the first scenario, the support entitlement may be what is called “non-compensatory”. The recipient may have a need for short-term, transitional support (with the SSAGs, the recommended duration of support is 0.5 to 1 times the period of the cohabitation – a cohabitation of 5 years would generate a recommended duration of 2.5 to 5 years). In the second scenario, spousal support would be payable for an indefinite period of time, subject to variation and possibly review.
For the most part, the difficult cases involve the medium length marriages, with or without children. Whether spousal support should be reviewed after a certain length of time (usually 2 years or longer) or be terminated after a certain number of years, depends on a number of factors and circumstances. For example, in medium term marriages where there are still dependent children, it is highly unlikely that the court will set an end date for support. Similarly, if there is a strong compensatory component to the entitlement to support (a spouse has been significantly disadvantaged as a result of the marriage), the court will be loathe to end support by a certain date, short of some assurance that the recipient spouse will be self-sufficient by that date.
To add to the uncertainty surrounding the appropriate duration of spousal support is the fact that there are exceptions to the SSAGs. For example, if a recipient spouse is ill or disabled, then even in cases of medium length marriages, the court may ignore both the duration and quantum recommendations of the SSAGs, based on the need of the recipient spouse for ongoing support beyond the recommended ranges.
A final consideration to the issues of quantum and duration of spousal support, is the concept of restructuring; recommended ranges of amount and duration of spousal support can be “restructured”, such that the amount of support can be either reduced (or increased), with the duration of the support being extended (or shortened), so as to fall within the combined recommended quantum and duration of support by, for example, paying a lower amount of support for a longer period of time
So, how long is spousal support payable? I hate to say it, but….it depends.