Spousal Support: Post Separation Income Increases

My ex's income went up since our separation. Can I ask for more spousal support?

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When a separation occurs, sometimes the spouse with the higher income will pay spousal support based upon their income. But what happens if the payor spouse then receives a generous promotion, or their income increases for any other reason? In this post, Daniel Duyvelshoff, a Fresh Legal intern from the University of Ottawa law school, looks at how a post-separation income increase can impact a spousal support obligation.

As we have discussed in previous posts, spousal support can be based on compensatory or non-compensatory grounds.

Compensatory spousal support is based on the impact of the relationship on the spouses’ financial positions, such as when a spouse sacrifices their career goals for the benefit of the other spouse who may then enjoy financial success.  The recipient is “compensated” for the impact of the relationship on their financial position.  Alternatively, non-compensatory spousal support is based upon need and ability to pay. If one spouse has a surplus while the other is in poverty, the wealthier spouse may be obliged to pay support.

When a court considers whether spousal support should increase based on a payor spouse’s post-separation income increase, a critical question is whether the spousal support claim is based on compensatory or non-compensatory grounds.  If support is being paid on a compensatory basis, and the recipient spouse is able to demonstrate that the recent success of the payor can be linked to contributions made by the recipient spouse during the relationship, they may be permitted to share in a post-separation income increase.

It is important to note that spousal support will not always increase due to a post-separation income increase of the payor spouse. As with many legal questions, the answer depends upon the facts and circumstances of a particular case and a contribution by the recipient is just one of many factors to consider. Others include the degree of sacrifice of the recipient spouse, changes to a payor’s lifestyle post-separation, and whether the income increase was simply pure luck. Further, the likelihood of a post-separation income increase impacting a spousal support order will be lessened if too much time has elapsed since the separation, or if the payor spouse also made some sacrifices and contributions for the benefit of the recipient spouse.

The determination of whether a recipient spouse may share in a post-separation income increase of a payor spouse is a complex situation. The number of factors and how they are presented can be critical in influencing a court either way. This is no simple task but we can help. Contact us today to schedule a free telephone consultation.