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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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  #21 (permalink)  
Old 03-13-2014, 10:17 AM
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Quote:
Originally Posted by HammerDad View Post
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.
No harm in them requesting the disclosure at this time. That way *if* there are arrears owing they have a very strong case to collect them. But, as you point out it is only a month or two difference. Not like the change in employment happened June 30 of the year after financial disclosures were made and it is a whole year until the over or under payment is discovered.

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Originally Posted by HammerDad View Post
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.
Again, for common situations I don't disagree. What I am debating (as an example) is a June 30th employment change. Be it positive or negative increase in income. Arrears or over-payments are racking up for 12 months in this situation because it is only 29 days after the June 1st deadline of most regular orders.

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Originally Posted by HammerDad View Post
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?
Just like a pension assessment there are processes and formulas to do this. Where it becomes more difficult is for people who get options in companies that are not publicly traded. For the standard companies that have histories on the exchanges there are ways that it can be determined.

It all shows up on an employees T4 anyways (if publicly traded companies). The stick situation is when you are dealing with non-public shares that may never be worth the paper they are written on. (e.g. Pets.com! LOL)

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Originally Posted by HammerDad View Post
OP would likely argue the ex's income be imputed to the maximum entitlement.
I wouldn't recommend anyone ever do this. The courts look for reasonable requests. This I agree wouldn't be reasonable.

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Originally Posted by HammerDad View Post
OP's ex would argue for the minimum or actual amount used.
I would argue for the number closest to the actual. The law of averages can be applied here by the other party. Reasonable averages of course.

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Originally Posted by HammerDad View Post
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.
Guessing by one party leads to "unnecessary litigation". Because that party whom is in "control" will generally under estimate to gain an advantage. Employment agreements are easily interpreted and can be presented. But, the disclosure has to be frank and open to both parties. You can't have one party saying "i make about this much"...

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Originally Posted by HammerDad View Post
OP has a review process where she will benefit from any increase in salary.
See my example above with regards to the June employment changes MANY people make. If you are going to change jobs to a much higher paying job... A negative advocate lawyer will tell you to do it in June right after you set down CS and other support obligations... Most people don't have the $ to come back to collect on the arrears so, you will get a year of underpayment.

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Originally Posted by HammerDad View Post
OP likely just isn't happy that she will have to wait a year to get it, and wants it now.
Arrears are a ugly matter.

Quote:
Originally Posted by HammerDad View Post
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.
It isn't easy if you don't have the documentation. It is much easier if you have full and frank financial disclosures.

Quote:
Originally Posted by HammerDad View Post
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.
I am trying to argue the point that there needs to be better custodianship of C/S and parents need to not hide disclosures and give excuses to not act in their children's best interests.

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Originally Posted by HammerDad View Post
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.
For which I am of the opinion you simply would fail because the counter argument is based on the time of year that the Application is made. If you are in court on June 30th ... You will likely be successful. If the change is in April then, it isn't worth the effort as the arrears won't be "material" enough.

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Originally Posted by HammerDad View Post
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.
Lets look at the hypothetical situations as you may be correct.

Income earner 150,000 and another at 35,000 paying offset with one child.

Monthly CS according to mysupportcalculator.ca is: 960

Increase to 155,700 changes the offset to: 1,016

Only a difference of 100.00. So, your argument may be a good one.

Now if the CS payer (150K) is paying full table it is: 1,263
Now if the CS payer (157,500) is paying table it is: 1,319

So, the 5% increase may not be material enough to bother with.

Now if they went from 150,000 to 190,000 it takes CS to: 1,596
(That is a 20% increase in pay.)

If this happened in June the arrears would be 3996.00. Again, you may be correct as this may not be worth the battle in court to even collect on.

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Originally Posted by HammerDad View Post
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.
You can get a letter from your employer possibly that outlines the history of company match bonus payout for the past 3 years. You can then take a reasonable match for the performance side of the equation. I see it done all the time this way.

But, you may be correct. It may not be worth the effort and time to bother. But, I would still recommend requesting the disclosure in a with prejudice manner so if there is a large gap you can justify the arrears request.

Good Luck!
Tayken
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  #22 (permalink)  
Old 03-13-2014, 10:30 AM
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I see your point, but note that I don't believe there would be arrears. Or, if there are, it would not be for the entire preceding year. C/S is generally reviewed and adjusted on a going forward basis annually based on tax returns for the previous year.

Depending on the nature of the two c/s most common provisions common in orders, the c/s adjustment may be retro to Jan 1 of that year, or it is simply June to June. There would be no arrears in instance 2, or arrears from January to June in instance 1, as it is going forward number.
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  #23 (permalink)  
Old 03-29-2014, 06:09 PM
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Okay,,,, I very much enjoy reading your posts. Now for an update.

As suspected.... he earned 18900 more in 2013 than he declared. During all of the mediation process in 2013, he stuck to the information, that he was going to make 66800 in base, and 41k in bonus 110k. He stated over and over, he wouldn't make any more money in bonuses.

Alot of decisions were based on this disclosure. As it turns out, 7500 was paid to him end of April (during negotiations) and again 7500 was paid in August (still mediating), the other almost 4k, who knows when it was paid.

Bottom line here, he lied. Was deceitful in his income, and I think it is reasonable to assume, he did so, to lesson the impact of his earnings on his support/spousal support payments.

During the separation period (where he would not leave the house) he swore up and down, he would only make his base salary of 66k and I was making my 35k... based on that we agreed to a 60/40 split of household expense during the separation period in anticipation of his leaving. He also, forced us to skip 2 mortgage payments as he said he was broke. (I have since purchased the house, and he has his own house, he was paid 40K for his equalization payment)

Now, I am not really bitching at any of this, but what I have offered to him (and he's already turned me down), to reflect his income and my income of 128 and 33k would be a 78/22 split for expenses and that he owes me 13k. He gave me 6k in September from his 40k bonus (pity money? I don't know) so I said, 7k would be more than fair. He has declined.

I am now contemplating having my lawyer go to court, have the CS and SS part of the agreement tossed out, and going after him for max SS and table CS.

I stayed at home for 14 years and took care of this family, while he built himself a career and has now become a VP. Enough is enough. You can't negotiate or mediate an agreement, lie and cheat and expect others to stand by and take it.

All that has ever been requested is equalization, SS in the amount to balance out take home pays after CS has been paid.

I would really appreciate your comments
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  #24 (permalink)  
Old 03-29-2014, 06:33 PM
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Well well well. Another case of a lying bastard it seems.

I can assure you it comes down to credibility and simple mathematics.

I'd recommend taking all of your financial information and dropping it off at your accountant's. Have the accountant prepare a summary of the information as you know it. Pick up the documents from the accountant and take it to your lawyer.

Go for a mani/pedi.

If you have a competent lawyer he will file a notice of motion. Your ex will summarily be circumcised in court.
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