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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 12-12-2016, 04:01 PM
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Quote:
Originally Posted by DGES View Post
My Ex and I have a signed separation agreement from 2012 (we separated in 2011). It was created during a time of great stress and financial restriction for me as I had gone back to school and was only working a very low paying part time job at the time.
Sorry to say but, this is a very long standing agreement and will be hard to disrupt. A significant and material change in circumstance will be required. You should have gotten proper legal counsel when you signed this agreement. As well, you should have considered the long-term impact this agreement would have. Final agreements made on consent are not easily overturned.

Quote:
Originally Posted by DGES View Post
Since I was in school (campus was 3 hrs away) at the time (3 years) and then on probation for 1 year with a part time professional job related to my why I went back to school but it forced me to live 45 mins away from the kids and then another 1 year with an even better full time job in the city that allowed me to move back to within walking distance to my children...I have up until now not been able to provide a set schedule.
I hate to tell you but, your decision will not work in your favour. You should have remained in close proximity to the children and made them a priority and not your career. You do have one thing going for you though, you moved back to be in close proximity to the children.

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Originally Posted by DGES View Post
1) we would share Joint Custody of our two children
Good.

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Originally Posted by DGES View Post
2) the primary residence would be with my Ex
Bad decision.

Quote:
Originally Posted by DGES View Post
3) the father would have access as agreed upon from time to time between the parties because I was away a lot (every second weekend and more some times)
Really bad idea. You should have set down a fixed schedule that changed once you obtained employment and moved back to the jurisdiction.

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Originally Posted by DGES View Post
4) the mother would facilitate access that would take priorities over other activities and include weekends when possible provided adequate notice was given
Not enforceable and not worth the paper it is written on unfortunately. It is a feel good statement.

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Originally Posted by DGES View Post
5) A more regular regime of access will be implemented as soon as the Husband's timetable facilitates same.
Again, a feel good statement. How is a judge supposed to interpret this? What was the criteria for this to be met? If you didn't detail it out you are not going to be able to really rely upon this clause. The status quo has been established over the last 4 years of you not being equally involved in the residential schedule.

Quote:
Originally Posted by DGES View Post
Well....she said NO. Actually she said:

I am willing to agree to more access after a reasonable time where you have demonstrated parental responsibility. You have to understand that after 5 years of showing only choices that serve you, I am not confident in your ability to care for the children. This past 5 day visit, only the third so far, demonstrated a lack of responsibility or care for the children. I am willing to agree to more weekend access."
Although rude she does make a point. You setup an agreement that only serves you. You now have to live with the bad decision you made or bring an application on a material change in circumstance. It is a huge uphill battle. Had you gotten proper legal advice you would better understand that to change something after an agreement is made final is hard.

Quote:
Originally Posted by DGES View Post
Not only was her math wrong (I've had the kids 5 days for 5 months not 3) but my "demonstrated lack of responsibility or care" was left over cheese in my son's lunch bag....
Yes, her response is rude but, it is not without merit though.

Quote:
Originally Posted by DGES View Post
]Outside of written communication her immediate reaction to me pursuing more access has been "you just don't want to pay support, the time you want would put you close to or at 40% so I can't agree."
Well, she isn't incorrect in the assumption. Many parents try to increase access for this purpose.

Quote:
Originally Posted by DGES View Post
I have never made it about support payments but I have to admit I can't afford bed frames for my kids right now and the added time will mean more food, etc. so it would be great to keep some of that support to actually support the kids when they are with me more now.
Is it about money or is it not? If it is truly not about money and support then offer to continue to pay full table support on a 50-50 access schedule.

Quote:
Originally Posted by DGES View Post
However, I understand that I can't ever mention that no matter how much it makes sense. Oh and for now she makes $30000 more then me.
But has the children more than 60% of the time so it doesn't matter what she makes. Only your income matters as you are the non-residential parent and are required to pay full table support as you should be.

Quote:
Originally Posted by DGES View Post
So where do I go from here?
You make an offer for 50-50 and continue to pay full table support and demonstrate that it isn't about the money but, time with the kids. In 2-3 years you bring forward a motion only about CS and provide evidence of the schedule and ask a court to adjust the child support.

Quote:
Originally Posted by DGES View Post
There is a dispute clause in our agreement that we utilize a mediator when we can't agree. I was told by my lawyer to pursue that route since there is no way I can afford court right now...but how do I word it?
Mediation is nonbinding. It is an excellent way for the other parent to further deplete your funds. You go to mediation you have to pay for the mediator and they are not cheap. Good ones bill around 650 an hour and crappy ones around 230 an hour. Nothing is binding so you are basically paying someone to listen to nonsense and not reach an agreement.

Quote:
Originally Posted by DGES View Post
Do I hold out that maybe she will change her mind? In the meantime I'm finally available to see my kids more and can't, its frustrating!
Make a reasonable offer to settle that she can't refuse. For example, more time and same CS... If you take the money off the table as an element you will have a better chance of increasing access with the children.

Good Luck!
Tayken
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