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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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Old 06-27-2006, 11:02 PM
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Default claiming undue hardship

My boyfriend of one year is claiming undue hardship for his last 2 marriages and 6 yes 6 children. 3 from wife #1 and 3 from wife #2, wife # 2 wants more money since she found out he lives with me. She wants to have the judge bring my income into the picture. We have lived together for 6 months, I have my own daughter to raise with no help from my ex. I thought the common law marriage was after 3 years, My question is I have only lived with him for 6 months am I considered commonlaw? Do I have to provide my income to the judge? I really do not want to be any part of this spousal war, He already pays over 50% of his income. Any help would be appreciated.
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Old 06-28-2006, 10:03 AM
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Hi boxer,

You're right in saying that you are not considered common law unless you and your partner have lived together continuously for 3 years, or you and your partner have a child together.

I'm not sure whether wife #2 is asking for more child support or spousal support.

If wife #2 is looking for more child support, your income has nothing to do with the situation whether you've been living with your partner for 6 months or 20 years. Child support is based on the payor's income and the payor's income alone. The fact is that your partner has 6 children to support, and I would imagine that supporting 6 children would be tough on any child support payor!

In a spousal support situation, however, your income may come into play. What wife #2 wants to show the court is that there is a second income in the household, being yours, and as such there is an extra contribution to the monthly expenses. Your income is important in an undue hardship claim because it is very unlikely for your boyfriend to be suffering any hardship if you are earning a significant income.

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Old 06-28-2006, 12:30 PM
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Thankyou so much for your help, it is only child support not spousal.
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Old 06-28-2006, 01:36 PM
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Actually boxer,

I was just looking through the Federal Child Support Guidelines, and it looks like I was incorrect. Section 10 states:

Undue hardship
10. (1) On either spouse’s application, a court may award an amount of child support that is different from the amount determined under any of sections 3 to 5, 8 or 9 if the court finds that the spouse making the request, or a child in respect of whom the request is made, would otherwise suffer undue hardship.

Circumstances that may cause undue hardship
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(a) the spouse has responsibility for an unusually high level of debts reasonably incurred to support the spouses and their children prior to the separation or to earn a living;
(b) the spouse has unusually high expenses in relation to exercising access to a child;
(c) the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
(d) the spouse has a legal duty to support a child, other than a child of the marriage, who is
(i) under the age of majority, or
(ii) the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
(e) the spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

Standards of living must be considered
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.

Standards of living test
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.

Reasonable time
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.

(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.

So, what it's saying is that after your partner pays all of his child support, if his household standard of living is higher than wife #2's, his application for undue hardship may be denied. BUT, he does qualify for undue hardship under s. 10(2)(d). This is something to definitely speak with your partner's lawyer about. Perhaps someone else can help us out on the subject.

Sorry for the mixup!

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