Divorce & separation

How to write your own separation agreement

Section 4: Spousal support (Optional)

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Who can get spousal support

Spousal support is paid to a former spouse under an agreement or court order. Spousal support is also called maintenance.

Under BC law, you can apply for spousal support if:

  • you were married,
  • you lived together in a marriage-like relationship (common-law) for at least two years, or
  • you lived in a marriage-like relationship for less than two years and have a child together.

For more information, see our fact sheet Spousal support.

The same rules apply about spousal support apply to Aboriginal parents as non-Aboriginal parents. But one important difference applies to Aboriginal parents who are status Indians and may not be required to pay income taxes. In these cases, the court will "gross up" the income of the parent paying child support to make sure the children get an appropriate amount of child support.

See our Aboriginal Law in BC website for more information.

This section includes some common spousal support paragraphs for you to choose from. Not all possibilities are covered. The CLEBC manual covers more options.

Negotiating spousal support

Consider these questions when you negotiate spousal support:

  • Did your relationship benefit or harm either of you financially?
    For example, did one of you work outside the home during the relationship or stay home to care for children? Did one of you work while the other went to school?
  • How long were you and your spouse married (or living together)?
  • Can you earn any income? Factors to consider include:
    • health,
    • age,
    • training or experience,
    • the possibility of getting training,
    • ability and educational background, and
    • whether you have young children.
  • Does one spouse earn a lot less than the other?
  • Is the spouse who is being asked to pay able to pay? Is the payor's income steady or does it change? What are the payor's future prospects?

The Supreme Court of Canada has said that it's a good idea for family law agreements to set out why spousal support is being paid. This means writing down what factors you considered when you decided about spousal support.

Figuring out the amount

The Spousal Support Advisory Guidelines can help you figure out the amount of spousal support that should be paid. The guidelines aren't the law. Neither you nor a judge has to follow them. But if your case went to court, the judge would probably look at the guidelines and consider the questions listed above to make a decision.

The guidelines take into account:

  • both spouses' incomes,
  • how long you were together, and
  • whether you have children.

For more information, see our fact sheet Spousal support.

Your basic information

In the Short name text boxes, enter the short names for you and the other party. These should be the same as the short names you entered in the Introductory clauses.

Once you've entered your names, they'll appear throughout the clauses below in place of Party 1, Party 2, or Name.

 

No support

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In some situations, you might agree that neither of you will pay spousal support. For example, you may decide to do this if you:

  • have similar income levels, or
  • you divided your property in a way that's intended to make up for not paying spousal support.

In this case, your agreement should include a clause that says both parties are waiving spousal support and why. This means you're both giving up any right you have to spousal support. (This statement is also called a waiver.)

If you include this waiver in your agreement, it's a good idea to spell out what was received in exchange (for example, a bigger share of property).

A court can change an agreement about spousal support if the agreement was made unfairly. For example, an agreement would be unfair if:

  • one spouse didn't share financial information,
  • took advantage of the other spouse's vulnerability, or
  • didn't understand what they were signing.

A court can also change an agreement if it's significantly unfair according to section 164(5) of the Family Law Act.

Tip: Remember that all the paragraphs below are automatically included in your text file unless you click Don't include. If you change your mind, you can always include the paragraph again by clicking Include.

Decide whether including the waiver of spousal support applies to you. If not, click Don't include.

Even if our circumstances change in unexpected or radical ways:

  • neither party will claim support from the other, and
  • each party gives up any claim for support from the other forever.
Include
Don't include

Spousal support to be paid

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Spousal support is usually a set amount paid once a month. It's a good idea to include the date spousal support will end. (It's also a good idea to describe what might end the obligation to pay spousal support. See paragraphs 18 – 29.)

  1. Decide which paragraphs apply to your situation. Click Don't include for the paragraphs that don't apply.
  2. For paragraph 2:
    1. Click the name of the party who will pay spousal support. The field will update with your names.
    2. In the text box, enter the amount they will pay each month.
  3. For paragraph 3:
    1. In the first text box, enter the day of each month on which spousal support will be paid.
    2. In the second text box, enter the date when payments will start.
  4. For paragraph 4:
    1. Click the name of the party who will pay spousal support. The field will update with your names.
    2. In the text box, enter the number of months for which that party will provide post-dated cheques in advance.
  5. For paragraph 5, in the text box, enter the date when the spousal support agreement will end.

Name will pay to Name spousal support of per month.

Party 1
Party 2
Include
Don't include

Spousal support will be paid on the day of each month starting

Include
Don't include

Name will provide Name with post-dated cheques covering payment of spousal support for each month period in advance.

Party 1
Party 2
Include
Don't include

The obligation to pay spousal support under this agreement ends on .

Include
Don't include

Tax treatment

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Under the Income Tax Act, spousal support payments are deductible for the payor, and included in the recipient's income. You can't make an agreement that changes this tax law.

Include paragraph 6 in your agreement. Then:

  1. In the text box, enter the date when spousal support will start.
  2. Click the name of the party who will be receiving spousal support. The field will update with your names.

All spousal support paid since will be:

  • included in calculating Name's income for the years Name received it, and
  • deducted in calculating Name's income for those years.
Party 1
Party 2
Include
Don't include

Changes to spousal support

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Since spousal support is based on facts that may change over time, you might want to include paragraphs that describe when you would vary (change) your spousal support agreement.

  1. Decide which paragraphs apply to your situation. Click Don't include for each paragraph that doesn't apply:
    1. If you don't want to allow any changes at all to spousal support, include paragraph 7.
    2. If you want spousal support to be automatically adjusted every year, include paragraph 8.
    3. If you want to review spousal support based on specific factors, include paragraph 9. Then include paragraphs 4 – 9 as appropriate.
  2. For paragraph 8:
    1. In the first text box, enter the date on which you want the amount to be calculated.
    2. In the second text box, enter whether you want the amount to be based on the low, mid, or high range of the Spousal Support Advisory Guidelines.
  3. In the introductory paragraph before paragraph 9, in the text box, enter how often you and the other party will meet to review and revise spousal support. (For example, every year, two years, etc.) Then:
    1. Decide which of the factors described in paragraphs 9 – 14 apply to your situation. Click Don't include for each paragraph that doesn't apply.
    2. For paragraph 10, click the name of the party who will be receiving spousal support.

This is a final agreement about spousal support.

Neither party may apply to vary spousal support, regardless of any change in the circumstances of the parties, whether foreseen or unforeseen, radical, catastrophic, causally connected to the marriage, or otherwise, including a change resulting from increasing age or declining health.

Include
Don't include

The amount of spousal support will be calculated each year on , based on the range of the Spousal Support Advisory Guidelines.

Include
Don't include

The parties will meet at least once every to review and revise spousal support, taking into account these factors:

increases or decreases in the parties' incomes

Include
Don't include

Name's ability to be economically self-sufficient

Party 1
Party 2
Include
Don't include

Changes in the needs of the parties, including:

Include
Don't include

support provided by a new spouse

Include
Don't include

changes to the parties' needs, except those that are because of obligations to a new family or spouse

Include
Don't include

changes to the parties' needs, including those that are because of obligations to a new family or spouse

Include
Don't include

Getting information

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When the agreement includes review or automatic variation clauses, you should also include a clause about exchanging the information that will be needed to make changes or do a review.

Decide whether this applies to your situation:

  • If not, click Don't include.
  • If so, in the text box, enter the month and day of each year when you and the other party will exchange income tax returns.

By of each year, the parties will exchange copies of their income tax returns for the previous calendar year.

Include
Don't include

Dispute resolution

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You can include the following two paragraphs that say that neither of you will apply to court to change the spousal support amount unless you have first tried to settle your dispute by negotiation and/or mediation.

Decide which paragraphs apply to your situation. Click Don't include for each paragraph that doesn't apply.

Before either party applies to vary spousal support, they will attempt to negotiate a resolution.

Include
Don't include

If the parties cannot resolve the issue through negotiation, they will attempt to resolve the issue through mediation.

Include
Don't include

When spousal support ends

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You should set out when the spousal support payments will end. The list below shows some events that might trigger the end of spousal support payments.

  1. Decide which paragraphs apply to your situation. Click Don't include for each paragraph that doesn't apply.
  2. For paragraph 24, in the text box, enter the number of days that the party receiving spousal support must be in a marriage-like relationship before spousal support ends.
  3. For paragraph 28, in the text box, enter the training, course, or education the party receiving spousal support must complete before spousal support ends.
  4. For paragraph 29:
    1. In the first text box, enter the length of time after the youngest child turns a certain age when spousal support will end.
    2. In the second text box, enter the age at which the youngest child must reach when spousal support ends.
  5. For paragraph 30, in the text box, enter any other reason that will end spousal support.
  6. Review all the information you've included in this section and make sure it's correct. Then:
    1. Click Open text version. A text copy of this section of the agreement will appear in a new browser window.
    2. Copy and paste the text into a word processor.
    3. Go through the section and number each paragraph/clause. Continue the numbering from where you left off with the previous section. Be sure to save your file.

The obligation to pay spousal support ends if the party paying spousal support:

leaves their employment
Include
Don't include
begins receiving a pension
Include
Don't include
dies
Include
Don't include

The party receiving spousal support:

dies
Include
Don't include
remarries/becomes the spouse of another person
Include
Don't include
lives with another adult person in a marriage-like relationship for a period of more than days
Include
Don't include
becomes self-supporting
Include
Don't include
finds permanent full-time employment providing a net income in an amount equal to or greater than spousal support
Include
Don't include
receives a share of monthly pension benefits
Include
Don't include
completes
Include
Don't include
after the youngest of the children becomes
Include
Don't include
Include
Don't include