The term “indefinite support” is used in a court orders or agreements to describe the duration of a spousal support when the Court is not able to determine an appropriate finite period of support. This typically occurs in two circumstances:
1) when the relationship is longer than 20 years; and
2) when the “rule of 65” applies – if you add the years of living together to the recipient’s age and the total is greater than 65.
Indefinite support, however, does not mean that spousal support or the quantity of spousal support will continue forever.
Spousal support orders are open to variation and review as the parties’ circumstances change. An application to vary a spousal support order or agreement must meet the threshold test for a “material change in circumstances.” To meet this threshold test for variation, the change to the parties’ circumstances must be significant enough that their current circumstances were not contemplated or accounted for when the last order was granted. A material change in circumstances might include a change in either parties’ income, re-partnering, or retirement.
Retirement is often included as an explicit ground for reviewing a spousal support order or agreement, and it is common for lawyers to include review clauses to eliminate any uncertainty as to whether retirement would be considered a material change in circumstances. Even where the parties do not specify whether retirement is a material change in circumstances, retirement often constitutes a material change.
If, however, a party decides to enter retirement early, this decision is likely to attract scrutiny by the recipient and the Court. Early retirement may include retirement on a reduced pension or retirement before the age of 65. If a Court reviewing spousal support entitlement views the retirement as unnecessary or voluntary, the Court would likely be less inclined to reduce spousal support even if the payor’s income has been reduced by the early retirement.
As such, if a party is awarded indefinite spousal support, it does not mean that they will receive that same quantity of support for the rest of their life. Indefinite support simply means that the trier of fact (Judge, Arbitrator, etc.) could not set a defined period for spousal support because the parties’ relationship was over 20 years long or the rule of 65 was invoked. When a payor of support is ready to retire, and they are not voluntarily retiring early, a Judge or Arbitrator will review the spousal support arrangements and determine whether a variation is warranted.
A variation may include anything from a reduced monthly amount, a time restriction on further support, or termination of spousal support altogether.
It is also noteworthy that an award of “indefinite spousal support” does not remove the recipient’s obligation to work towards self-sufficiency. If a recipient does not make efforts to become self-sufficient, a Judge or Arbitrator may reduce spousal support regardless of whether their financial circumstances have improved or not.
If you are in the process of reviewing spousal support entitlement with your former partner, the lawyers at Family Central Law Office LLP are able to help you determine whether a court application, or alternative dispute resolution process may be appropriate, and how to proceed with crucial and practice legal advice. Please contact us today for a free consultation with our family lawyers by calling our office at 587-392-7970 or emailing info@familycentrallaw.com, or by clicking on our consultation page.
