You may be wondering if you have a claim for “back-dated” or retroactive spousal support. Here is what you need to know about unfulfilled spousal support obligations.
What is retroactive spousal support?
Spousal support may be owed for two different time periods:
- Prospective spousal support to address future obligations. For example, monthly spousal support of $500 to be paid on an ongoing basis, beginning on the date of the court order or separation agreement.
- Retroactive spousal support to address past obligations. This is support that should have been paid in the interim while you were waiting for the court order or separation agreement to be made.
Are arrears and retroactive spousal support the same?
No. Spousal support arrears accumulate where there is already a spousal support order or agreement in place, but the payor spouse is not complying with it. Using the example above, if the monthly payment of $500 is not being paid at all or only $250 is being paid each month, the difference between what should have been paid and what was actually paid are arrears of support.
How far back can a retroactive spousal support claim go?
A retroactive spousal support order typically goes back to the date that the support recipient gave the payor effective notice of the claim. Depending on the circumstances, the date of effective notice may be:
- The separation date;
- The date that support was first demanded; or
- The date a court application was filed.
The court has a lot of discretion when it comes to claims, but the general rule is that these types of claims will be limited to the past three years.
Determining entitlement to retroactive spousal support
In deciding whether a spouse is entitled to retroactive support, the court will consider all of the circumstances, and must specifically consider these four factors:
- The reasons for any delay in seeking support by the recipient spouse, such as fear of retribution or abuse in the relationship;
- Any “blameworthy” or improper conduct on the part of the payor spouse, such as hiding assets or non-disclosure of income;
- Whether a retroactive support award will cause hardship to the payor spouse; and
- The past and current circumstances of the recipient spouse.
Calculating spousal support retroactively
Once entitlement to retroactive support has been established, the Spousal Support Advisory Guidelines are used to calculate the lump sum of back-support to be paid. Calculating spousal support back to the commencement date is in many cases straightforward since it is based on actual, known incomes. However, tax implications add a layer of complication. Periodic (i.e., monthly) spousal support payments are taxable income in the hands of the recipient spouse, and tax deductible to the payor spouse. Lump sum support, on the other hand, is not tax deductible by the payor spouse and not taxable income for the recipient spouse. Contact an experienced spousal support lawyer for advice on “netting down” or discounting to arrive at an after-tax amount when calculating spousal support.
