Under the terms of a separation agreement, spousal support is a financial support paid by one spouse to the other following separation. It helps to meet the continuing needs of a financially dependent spouse for a defined time period. During this time, each spouse can work on becoming financially self-sufficient following the end of their relationship.
At Westside Family Law, we receive a lot of questions regarding how retirement affects spousal support. Many individuals believe their obligation to pay spousal support ends upon retirement – this isn’t always the case. To help clear up any confusion, this week’s blog tackles the subject of retirement and how it affects spousal support.
Does Your Separation Agreement Mention Divorce?
To understand how divorce affects spousal support it’s best to start by revisiting the separation agreement. A well-crafted separation agreement will typically address retirement, explaining any financial obligations one party must uphold. The obligation will either continue as normal, will be reduced to reflect lower income, or be eliminated altogether. Under the terms of the BC Family Law Act, if the financially dependent former spouse begins receiving a pension the other party is entitled to apply for a review of the terms of the separation agreement.
What if the Separation Agreement Doesn’t Mention Divorce?
Unfortunately, not every separation agreement is crafted with an eye on retirement. If there’s no mention of retirement or no end date in your separation agreement, spousal support is considered indefinite. There are several options open to individuals finding themselves in this scenario.
- Negotiate with the former spouse to try and end the obligation upon retirement
- Speak to a family law expert to assess options
- Apply to the BC courts to have the issue reviewed
What will the BC Courts Look at?
To make any changes to spousal support, BC Courts will require there to be a “material change in the means, needs, conditions or other circumstances of either party” before a change can be made. If you are the individual applying to change the separation agreement, the onus will be on you to prove there has been a material change. While retirement seems like a certainty to be considered a material change, it all depends on the circumstances of the retirement.
Factors to Watch
When making a judgement, courts will examine the circumstances of the retirement, as well as the financial outlook of the person retiring. If the retirement is voluntary, courts may not deem it sufficient to end or adjust payments. Will the paying spouse still retain other sources of income post retirement? Above all else, BC courts will assess the payor’s ability to continue paying and living comfortably post retirement. If this ability is compromised, it will factor into the decision.
Speak to an Expert
With so much space for interpretation, we recommend seeking advice from a family law expert before proceeding with any changes. At Westside Family Law, we have years of experience with separation agreements and spousal support. Contact us and we’ll be happy to assist you.