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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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  #11 (permalink)  
Old 03-11-2014, 12:39 PM
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I'm not sure what the hurry is and I doubt a promotion would be deemed a material change in circumstance, especially if the promotion was in title only and not role, AND it didn't come with a substantial increase in salary.

Promotions are foreseeable. People get them all the time. It wouldn't necessarily be a material change in circumstance.

Your ex has until the end of April to provide you with his income (T1) as you mentioned previously. Right now he should be paying you based off his 2013 T1, meaning his 2012 income. That is how it generally works. This year, you will get paid based off of his 2013 income, which likely won't contemplate the promotion. You will get c/s based off of his 2014 next year.

You have a review schedule in your agreement which you are to abide by. If he doesn't abide by it and update based off of his 2013 income by April 2014, you then can proceed to update the c/s in accordance with your agreement. But just because he got a promotion in 2014 doesn't mean you get to skip the provisions you agreed to (ie. your review clause in your agreement).

Unless I am missing something here, and he hasn't disclosed for last year and is otherwise behind that regard, I really think you are jumping the gun and aren't likely going be successful (if not even hit with costs for unnecessarily accelerating the agreed review provision).

Edit - just to add, for one to be able to invoke the change in circumstance provision, the change has to be material. Meaning a dramatic shift in one direction or another. A raise to an individual who makes over $100k of 20-30% or so, likely wouldn't be material. A raise of 80-100% likely would. So it isn't cut and dry. Further, there is the income review clause in your agreement strictly for this type of situation. That is why that clause exists, as changes in income are foreseeable and you have a means to update annually.

IMO, given the info provided, should this go to court, I don't like your odds.

Last edited by HammerDad; 03-11-2014 at 12:54 PM.
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  #12 (permalink)  
Old 03-11-2014, 01:01 PM
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Originally Posted by HammerDad View Post
I'm not sure what the hurry is and I doubt a promotion would be deemed a material change in circumstance, especially if the promotion was in title only and not role, AND it didn't come with a substantial increase in salary.
The key point is that any change to be "material" would have to be a substantial increase or decrease in salary. With my thumb up in the air and in support of HammerDad's wise advice I would say that this change to be material would have to be be over 5% increase in income.

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Originally Posted by HammerDad View Post
Promotions are foreseeable. People get them all the time. It wouldn't necessarily be a material change in circumstance.
To add to the point and support it further... Generally promotions are within the same organization.

A good citizen of CS would make an offer to increase CS upon a material change up-or-down in income.

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Originally Posted by HammerDad View Post
Your ex has until the end of April to provide you with his income (T1) as you mentioned previously. Right now he should be paying you based off his 2013 T1, meaning his 2012 income. That is how it generally works.
But, should a motion be brought for disclosure on a material change in circumstance (e.g. a change in employment) it usually will get heard. There generally is no good excuse to not provide financial disclosure at any time it is requested. Justices routinely question why the other party simply didn't provide the disclosure and update when they change employment or got a significant increase in income. The more interesting ones are the parents who bring motions when the other parent loses their job and wants to pay MORE CS. Most times the justice will order costs against the party who is not disclosing that they are unemployed or change employment and are now making less. (Especially the off-set paying parents.)

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Originally Posted by HammerDad View Post
This year, you will get paid based off of his 2013 income, which likely won't contemplate the promotion. You will get c/s based off of his 2014 next year.
A case can easily be made for an increase but, you have to think "penny wise pound foolish". To get the matter done through court you are going to have to put up a lot of money in legals. Generally increases in CS are not with the legal costs. Especially when it comes to increases resulting from promotions.

10,000 - 15,000 in legals and even if you get costs ordered it will be substantially less... So if you only get 50$ a month more it could take you months (120 if you are out $6000 even after getting a costs award) or even years to recoup the legal costs.

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Originally Posted by HammerDad View Post
You have a review schedule in your agreement which you are to abide by.
I disagree. I would advise anyone who has a material change in circumstance regarding their employment to provide full and frank financial disclosure to the other party and to seek a proper adjustment. If you do not and try to seek additional funds because you got less CS than you should have gotten and refused to provide disclosure to the other party... Don't expect a judge to be sympathetic at all with your nonsense. (As an example.)

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Originally Posted by HammerDad View Post
If he doesn't abide by it and update based off of his 2013 income by April 2014, you then can proceed to update the c/s in accordance with your agreement. But just because he got a promotion in 2014 doesn't mean you get to skip the provisions you agreed to (ie. your review clause in your agreement).
I am of the opinion that this would be viewed (if significant enough of an increase) as a material change.

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Originally Posted by HammerDad View Post
Unless I am missing something here, and he hasn't disclosed for last year and is otherwise behind that regard, I really think you are jumping the gun and aren't likely going be successful (if not even hit with costs for unnecessarily accelerating the agreed review provision).
If he went from "manager" to "vice president" in title you have in my opinion a strong case to seek an update on a material change. Generally, when someone refuses to provide financial disclosure it is because it is either (a) an advantage to them not to or (b) because they are embarrassed because they are making less in their new position.

In either situation CS should be adjusted accordingly. But, this is based on the fact that you have two parents involved in the matter who put their children's best interests. Generally these parents do not rely upon message forums such as this.

Good Luck!
Tayken

Last edited by Tayken; 03-11-2014 at 01:04 PM.
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  #13 (permalink)  
Old 03-11-2014, 01:13 PM
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You are not entitled to his employment contract or other (likely confidential) similar documentation.
But, as soon as an Application is made to the court (Form 8) Rule 13 comes into effect. You can request any disclosures you want from the other party they can simply refuse to comply.

Justices often rely upon employment contracts to establish CS.

Again, the "confidentiality" goes out the window once someone files an Application. Justices easily and quite often hear matters on a material change based on a suspected change in employment income. As part of that hearing the justice will order the disclosure of employment contracts in accordance with Rule 13. This is often done when someone is applying even under Rule 15.

Details can be found here:

http://www.attorneygeneral.jus.gov.o..._change_EN.pdf

Quote:
When is a motion to change made?

The most common reason people bring a motion to change is to change a support payment. A motion to change is often brought when one or more of the following happens.

The support payor is making more money than he or she was when the order or agreement was made.
• ...
Good Luck!
Tayken
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  #14 (permalink)  
Old 03-11-2014, 01:23 PM
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I would argue that the change in job title isn't a material change in circumstance. It was foreseeable. They even agreed to a review clause because it was so foreseeable.

A 5% isn't much over inflation, which was between 2-3% last year. Such raises are common. I had a raise of nearly 20% last month. I agree that was a material change and advised my ex as it was a larger then normal raise.

For the change to be material, it would likely also have to be outside the industry norm. If everyone in a certain industry got a 5% raise, then it probably isn't going to be deemed a material change. It is more an industry standard.

IMO, OP's ex likely understands he has a review clause in his agreement and is going to update c/s based off of the review clause, as they have always done. The OP will get her increase in C/S per the agreement, and won't otherwise be adversely affected. She just won't get it in the timeline she wants because she agreed to updating annually based off of the previous years income.
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Old 03-11-2014, 01:29 PM
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Quote:
Originally Posted by Tayken View Post
When is a motion to change made?

Again, the "confidentiality" goes out the window once someone files an Application. Justices easily and quite often hear matters on a material change based on a suspected change in employment income. As part of that hearing the justice will order the disclosure of employment contracts in accordance with Rule 13. This is often done when someone is applying even under Rule 15.
Key point, a justice can order disclosure of confidential documents. But until one is ordered to disclose, one is subject to the confidentiality terms in the document.

Quote:
The most common reason people bring a motion to change is to change a support payment. A motion to change is often brought when one or more of the following happens.

The support payor is making more money than he or she was when the order or agreement was made.
• ...

Good Luck!
Tayken
I agree that one can file a motion to change based off of change in income. But what I am suggesting is, that is unnecessary. The agreement contemplates changes in income and review/update of such annually. If everyone needed to do this, the courts would be swamped with people update payment terms. The reason why the clause exists is to keep these parties out of court and not waste the courts time with reviewing income that would otherwise be updated in due course.
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Old 03-11-2014, 05:40 PM
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Originally Posted by lotsofquestions View Post
ok.... I get the employment contract aspect. A letter, proof of income? The issue is that he has been promoted to Vice President. Then has the audacity to claim his income and pay plan has not changed one bit. Refuses to disclose. and the manner in which it was done (sends a copy of an old contract from 2011, detailing 2012 stuff, not signed by employer, not even on letter head, showing his income before he was promoted) is highly suspect. I am pretty sure his total comp package has changed substantially. Ie. stock options, dividends, pensions etc.

Not asking for the moon. but I'm certainly not going to just accept his "word" because he says so. He's been caught lying and deceiving far too often.
If a motion to change is made he is obligated to respond with a financial statement, complete with 3 years of NOAs and a recent paystub. A recent paystub should give all the info you need moving forward in 2014 (with the exception of raises that haven't happened yet in 2014). If it isn't disclosed, a judge will order the documents to be presented.
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  #17 (permalink)  
Old 03-12-2014, 11:54 PM
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Originally Posted by HammerDad View Post
I would argue that the change in job title isn't a material change in circumstance. It was foreseeable. They even agreed to a review clause because it was so foreseeable.
But, without disclosure of the evidence that the change in title didn't come with an increase in pay (that is material) then, a justice will hear the matter and evoke Rule 13 to gain the disclosure. But, the justice won't be too happy with a party that requires the Family Law Rules to be enforced even if they didn't get a substantial increase.

My advice would be to provide the other parent with a letter from your employer any time they ask for it. There is no need to create conflict. Of course, if someone is asking for a new one every week (or month) that is silly.

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Originally Posted by HammerDad View Post
A 5% isn't much over inflation, which was between 2-3% last year. Such raises are common.
All depends on what the person's gross income is. If it is 150,000 per annum 5% is a big number. So, it is hard to determine what is "material". It is very material if say the other person is paying on off set and only makes 35,000 per annum. 5% increase to a 150,000 is 7,500 which is 21.4% of 35,000.

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Originally Posted by HammerDad View Post
I had a raise of nearly 20% last month. I agree that was a material change and advised my ex as it was a larger then normal raise.
^^^ Good citizen of CS. Everyone should be this way.

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Originally Posted by HammerDad View Post
For the change to be material, it would likely also have to be outside the industry norm. If everyone in a certain industry got a 5% raise, then it probably isn't going to be deemed a material change. It is more an industry standard.
See my counter argument above. Material changes are subject to the two parties. There is no good formula for them. They are really a "crap shoot" at best and are at the discretion of the justice presiding over the matter.

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Originally Posted by HammerDad View Post
The OP will get her increase in C/S per the agreement, and won't otherwise be adversely affected. She just won't get it in the timeline she wants because she agreed to updating annually based off of the previous years income.
Or, have to claim arrears and fight it out in court to get it... It is all ugly when it comes to arrears...

In a perfect world... CS would be managed by a PROPER 3rd party (NOT FRO) that is integrated into the standard payroll processing companies directly and just balance out based on the gross pay of both parents each week. We have the technology to do it quite easily... (In a perfect world.)

Good Luck!
Tayken
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  #18 (permalink)  
Old 03-13-2014, 12:00 AM
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Originally Posted by HammerDad View Post
Key point, a justice can order disclosure of confidential documents. But until one is ordered to disclose, one is subject to the confidentiality terms in the document.
I would not recommend to anyone whom is requested to disclose a "confidential" employment document that is before the courts on a Form 8 Application to not disclose it and wait to be ordered to.

The easiest way to get the information and the costs for having to get something so trivial is to Server a Form 20 requesting the disclosure and then simply wait 30 days and then file a motion attaching the Form 20 that they didn't respond to. Costs + disclosure against the party refusing to provide the requested documentation.

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Originally Posted by HammerDad View Post
I agree that one can file a motion to change based off of change in income. But what I am suggesting is, that is unnecessary. The agreement contemplates changes in income and review/update of such annually. If everyone needed to do this, the courts would be swamped with people update payment terms. The reason why the clause exists is to keep these parties out of court and not waste the courts time with reviewing income that would otherwise be updated in due course.
I don't disagree at all. The challenge arises when someone's income drops or increases by a material sum in relation to both parties. There is no perfect formula (see above) on when this is appropriate though.

There is nothing worse than a party on an offset and the other party changes employment and shaves 30% of their income and requests that arrears be paid.

My recommendation to avoid this problem is to request the financial disclosure and when they come looking for the difference notify them you requested the disclosure at the time of the change, they refused and you are unable to pay the arrears because they refused the disclosure. Don't "offer to settle" the disclosure request so when they do go to court seeking the arrears you can provide the evidence that the other party refused to adjust at the time of the change and then claim, it was material at that time... But, it must not have been so material to that party as they didn't request an increase and provide the disclosure at that time.

Good Luck!
Tayken
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  #19 (permalink)  
Old 03-13-2014, 12:47 AM
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See this thread I just created on how to request financial disclosures:

http://www.ottawadivorce.com/forum/f...nancial-17239/
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Old 03-13-2014, 09:50 AM
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Originally Posted by Tayken View Post
But, without disclosure of the evidence that the change in title didn't come with an increase in pay (that is material) then, a justice will hear the matter and evoke Rule 13 to gain the disclosure. But, the justice won't be too happy with a party that requires the Family Law Rules to be enforced even if they didn't get a substantial increase.
OP will get disclosure when they receive the ex's info, which according to their agreement will happen sometime between now and June. OP's ex will likely follow the terms of the order, but OP doesn't seem content with that. OP wants to accelerate the review process be they smell extra money and want it now, not next year when the regular review process would entitle them to it.

Quote:
Or, have to claim arrears and fight it out in court to get it... It is all ugly when it comes to arrears...
Their wouldn't be arrears as the OP's regular review process entitles OP to updated C/S based off of the previous years income, much like most other court orders/agreements. The reason why it is done this way is because it is simple and provides a hard number.

OP believes there could be stock options and other benefits which OP's ex may, or may not, take advantage of. How would one put a number on a possible entitlement? OP would likely argue the ex's income be imputed to the maximum entitlement. OP's ex would argue for the minimum or actual amount used. But until OP's ex's taxes are done, no one has a hard number to base the ex's income off of. You can use the same reasoning for overtime and bonuses. Until you have the actual number, you are just guessing, and guessing generally leads to unnecessary litigation.

OP has a review process where she will benefit from any increase in salary. OP likely just isn't happy that she will have to wait a year to get it, and wants it now. But putting a number on her ex's actually income isn't as easy as someone like me, who simply earns an annual salary, no overtime and only possible bonus.

I get the sense OP just isn't happy having to wait like everyone else who has the exact same style of order/agreement, and feels they should be entitled to increase c/s now instead of what her agreement provides.

Edit - if I was opposing counsel, I'd simply argue to dismiss their motion as their agreement provides for a review process that will entitle OP to increased c/s. That OP wouldn't be adversely effected by following the terms of their agreement, as the necessary disclosure and monies would come, as per the terms of their agreement. They are just jumping the gun as they see money at the end of the rainbow. Further, outside of base salary, it is not possible to foresee what her ex's income is, thus creating a situation where the ex's income would have to be re-reviewed next year anyway.

Last edited by HammerDad; 03-13-2014 at 09:55 AM.
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