John Schuman, Toronto Family Law lawyer at Devry Smith Frank LLP, was asked this question just recently: “I am divorced and was told I had to pay her alimony for the rest of my life. She got the house and I got to keep my pension, but now I still have to pay her monthly and as I’m retired I am paying her from my pension.”
Orders for spousal support that are “indefinite” are subject to a review and possibly a change when there is a “material change in circumstances.” That means support can be reduced or ended when there is a big change for the support payer. Retirement usually qualifies and almost definitely qualifies when the support payer retires on income from a pension that he or she had during the marriage.
Where a spouse retires and is living off a pension that accrued during the marriage, it is very likely that spousal support will be significantly reduced or ended. When you divorced, the value of your property was divided with your wife. That division included the value of the part of your pension that accumulated during the marriage. That is why your wife got the house and you got the pension. (For more on how property is divided after marriage, listen to this podcast) Essentially what happened is you got half the value of everything your wife accumulated during the marriage, and she got half of the value of everything you accumulated during the marriage, which means, she got half the value in your pension.
Obviously, if she already received half of your pension, it is not appropriate for her to get a portion of it again as support when you retire. This is called in legal circles (and out of them) “double dipping.” She already got her share of her pension, so the part of your pension payments that related to what you earned during the marriage are not included in the calculation of your income for spousal support. That means your income is now very low (for support purposes) and that justifies the reduction in spousal support.
Some caveats to that:
1. The portion of your pension that you earned outside the marriage was not equalized and so using the income that comes from that portion of the marriage would not be “double-dipping.” So, you can still pay support on your pension income that is not related to the marriage.
2. “Double Dipping” does not apply to child support. Child support is based on your total income, whether it comes from an asset that was equalized or not.
To better understand spousal support, you may want to listen to watch this video.
If you are going to try to change the spousal support order, then you should watch this video before you start.
This $20, easy-to-understand book on Ontario Family Law has an entire chapter on how to change a support order. It also has sections on spousal support, property division and double dipping, so you will have even more information to answer your question. However, it sounds like there is a significant amount of money at stake, so it would be a good investment for you to speak to a good family law lawyer to make sure that everything is done properly and the judge grants your request. (If both of you have lawyers, your wife may consent to reduce support to avoid the costs of going to court with a weak case).
For more information on marriage registration and family law, please contact Toronto family lawyer John Schuman online or at 416-446-5080.