Note that answers given in this section cannot take the place of a lawyer. For legal advice about your specific situation, you must consult a qualified divorce lawyer. See our disclaimer.

"My lawyer tells me I'm eligible for spousal support, but I feel so guilty about my affair that I'm not sure I want to take money from my husband. What should I do?"

Anyone going through a divorce or separation is subject to a variety of emotions. Yours are more complicated, because you feel at fault. From your question, I do not know if the affair precipitated the separation or was simply a symptom of the failing marriage, but you should not make a financial decision based on those criteria.

In fact, the Divorce Act specifically states at paragraph 15.2(5) that in making an order or a temporary order, the court should not take into consideration any misconduct of a spouse in relation to the marriage. The objectives of spousal support are very clear, and they are set out at paragraph 15.2(6) as follows:

1. "to recognize any economic advantages or disadvantages arising from the marriage or its breakdown";
2. "to apportion between the spouses, the financial consequences arising from the care of children, above any obligation for child support";
3. "relieve any economic hardship arising from the breakdown of the marriage"; and
4. "so far as practicable to promote the economic self-sufficiency of each spouse within a reasonable period of time."

I would suggest that you concentrate on those directives that are mandatory in the law as your criteria for asking for spousal support.

In addition, the Family Law Act, a provincial statute as opposed to the federal Divorce Act, sets out the following purposes of a support order:

1. "to recognize the spouse's contribution to the relationship and the economic consequences of the relationship of the spouse";
2. "share the economic burden of child support equitably -- see or make fair provision to assist the spouse to be able to contribute to his or her own support"; and
3. "relieve financial hardship if this has not already been accomplished by a property award or by certain dealings with the home."

In determining the amount of spousal support, the court looks at a spousal-support calculation called the Spousal Support Guidelines, which are being followed by courts across the nation, that look at the length of the marriage; responsibilities for child care; and differences in income and various other criteria, none of which include conduct. Nowhere within the Divorce Act, the Family Law Act, or the Spousal Support Guidelines does the court allow for an affair to become an item to consider. While the Family Law Act does have a section that talks about a course of conduct that is "so unconscionable" as to constitute "an obvious and gross repudiation of the relationship", I do not believe that an affair would qualify as such an unconscionable act.

Many spouses settle for less than what they are legally entitled to because of their feelings of guilt, worthlessness, or a variety of other reasons and later live to bitterly repent their own actions in walking away from their rights. You have a long life ahead of you, and you should look to your rights and obtain them. If you walk away now, you may well end up compromising any future ability to obtain spousal support, especially if you sign a release.

Judith Holzman is a collaboratively trained family lawyer who has practiced for over 25 years in the Toronto and York Region areas of Ontario, Canada. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce. She can be reached at (905) 303-1070 or (416) 977-3050. View her Divorce Magazine profile.