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  #21 (permalink)  
Old 06-07-2017, 09:03 PM
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Originally Posted by arabian View Post

Spousal support MAY be retroactive to the time when it was first raised by the other party.
After reading into this, it appears this is slightly off. Spousal support MAY be retroactive to the date of separation, not just to when it was first raised by the other party.
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  #22 (permalink)  
Old 06-07-2017, 10:31 PM
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Originally Posted by mathatter89 View Post
After speaking with another lawyer today, even if the separation agreement is valid and a judge does not overturn it, I was told that a ex-spouse still has the right to seek SS, even if she waived it in the separation agreement.(which she did) I will also say that a judge may not find that fair (waiving SS) so this point is definitely arguable and is probably what she wants.
SS is not a guaranteed thing just because your incomes are different. If she waived it, that's good, but if she waived it without legal advice then she has every right to revisit it. It doesn't make her entitled to it though.

Did she make sacrifices to support you while you did key things that helped your income rise? Like did she support you financially while you completed school, or did she do all the housework so you could work 70hrs a week establishing yourself?

If she has her own career that did not suffer for being married to you, she may not have any entitlement to SS from you. Do not go in there with the assumption that she should get SS, or giving her SS will become more likely. Did she turn down promotions because of your career's needs? Did she have to quit her job and start over to follow you in a move for your career? If there wasn't anything like that, then don't cave in to paying her SS.

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Originally Posted by mathatter89 View Post
Question 1:
Why is a financial disclosure required on my part at all? If it comes down to a SS payment (lump sum or monthly), don't I just have to agree to it and pay it?

Ultimately it is my lawyers' belief that the separation agreement is enforceable and if my ex wants to overturn that she'll have to take it all the way to a judge.

Therefore I'm not sure why I have to do a formal financial disclosure if it comes down to a SS discussion - I get that my last 3 years worth of tax returns are necessary and I have to be able to pay it (e.g. most recently paystub and YTD info), but not sure why I have to do a full financial disclosure (by way of the form?)
Financial disclosure is standard, and is done any time anything goes to court (sometimes so the lawyers can see how much money they can make from you).

When it's to establish a separation agreement or to go to court to divide things, it's done to see what there is to divide, and if there is an entitlement to SS and if so, how much it may be.

The disclosure would be done as of the date of separation.

In this case, it sounds like the agreement is being reopened, so doing financial disclosure again as of date of separation would prove that everything was divided fairly.

Providing your current financial picture may not be required. What you've accomplished (or lost) after separation is none of her business. You'd have to ask an expert, ie, lawyer, though.

She would be interested in your current situation only because of the means test for SS, ie, do you have the means to pay her anything. You would argue the needs test, ie, she has her own career and doesn't need you to pay her anything.

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Originally Posted by mathatter89 View Post
Question 2: I have been told that the SS payment is done via a guidelines and that it will be based on the difference between my income and hers (based on our 2016 tax returns). If that's the case, why do I keep on hearing that "because she makes more now (in 2017), it'll help me? If it's all based on 2016, who cares about 2017?
IF she can prove entitlement to SS, which is based on a LOT more than just an income disparity, then a judge would look at amount. Amount would be based on income differences. And yes, you could argue that your income at date of separation is the relevant amount that should be used in the calculations, not whatever progress you've made on your own since then.

On the other hand, IF she can prove entitlement, she'll want to argue that your means to pay should be based on your current income. Which helps you because her current income is what would tell you her needs.

But definitely go in there with the assumption that she waived SS and has her own career, so there's no need for you to pay her anything at all.

Her murmuring about costs means this: if she is successful in court and you were unreasonable in negotiations before court, you are responsible for paying her legal fees which should have been avoidable. So just negotiate reasonably with her.

Based on what you described in your first post, you may not have done equalization properly, but it's hard to tell. Equalization is completely separation from SS so for you to be confused between the two tells me things may not have been correct though. If you didn't each have legal advice when you did it, that's another bad sign; there was nobody consulted to tell you it was incorrect.

Tell her you'll be happy to hear her arguments for what went wrong with equalization, and if there's anything wonky, you'll make it right. Don't even bring up SS, and operate under the assumption she's not entitled to it.

Last edited by Rioe; 06-07-2017 at 10:36 PM.
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Old 06-07-2017, 10:38 PM
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Couple of things.

1) She can make the argument that she supported me while I was helping my income rise. I can also make the argument that I turned down making even more money (by staying where we lived) in an effort to help her establish her career because she's in a field that is location dependent (versus mine is not). I can also make the argument that she decided to take a significant pay cut at one point due to medical reasons and I agreed to support her with a career change as she re-established her career - had to get a new degree and experience in a new field altogether. (cohabitated at the time, but not married) (in total, cohabitated for 5 years, married for 3 of those years).

2) She can make the argument that she could have made more money in the last year of our relationship by working elsewhere, but she chose to stay in an effort to support me because I was making more money then. If she would have been single, she could have made more money oversees, but then again her bills and schooling wouldn't be magically paid by me and her schooling wouldn't have been partly paid by me/us.

---
If disclosure is done as of date of separation, then why am I forced to (as part of the form) list YTD income and forced to attach the most recent paystubs?

For the record, she is not murmuring about costs, I'm just a pessimist so I'm thinking out loud/writing it out because I'm overly pessimistic. So thanks for addressing that
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  #24 (permalink)  
Old 06-08-2017, 12:30 AM
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There are many reasons for current full financial disclosure. One that comes to mind is if you did not do equalization properly (she got shorted significantly). How much money did you profit/realize by the incomplete equalization?

With regards to medical impairment and her taking a pay cut. How would this be voluntary on her part?

Good to hear that you are contemplating retaining legal counsel. In the meantime you can access CanLii and read case law. Many of your questions would be answered by simply reading cases similar to yours. I found it to be quite useful.
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Old 06-08-2017, 09:39 AM
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Originally Posted by arabian View Post
There are many reasons for current full financial disclosure. One that comes to mind is if you did not do equalization properly (she got shorted significantly). How much money did you profit/realize by the incomplete equalization?

With regards to medical impairment and her taking a pay cut. How would this be voluntary on her part?

Good to hear that you are contemplating retaining legal counsel. In the meantime you can access CanLii and read case law. Many of your questions would be answered by simply reading cases similar to yours. I found it to be quite useful.
It is my belief that she was shorted $0 during equalization. Like I said, both of us freely exchanged financial information and we kept what we brought into the relationship and split what we earned together in half.

With regards to her career

1) She was destined to go into Career A.
2) According to her, her medical issues (not a disability) would impede her at career A - not stopping her, but it would have been uncomfortable and not ideal (and something did happen to one of her professional designations that then prevented her from doing that - let's call that a revocation)
3) She decided to go into Career B - went back to school for it, and then started slowly getting into the field. She asked for my support to do this, and I offered it to her. (by paying for parts of her education, and supporting her financially). One can even argue that when she was starting out work wise, that she could have worked a second job as she was home all day all week for around 3 years while I worked a full time job traveling all over the world. Because I was not home and she could have worked more (as opposed to working 2-3 hours a day) but didn't have to (remember, no kids)....[in my belief] this would further hinder her argument for SS.
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  #26 (permalink)  
Old 06-08-2017, 09:45 AM
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Originally Posted by mathatter89 View Post
1) She can make the argument that she supported me while I was helping my income rise. I can also make the argument that I turned down making even more money (by staying where we lived) in an effort to help her establish her career because she's in a field that is location dependent (versus mine is not). I can also make the argument that she decided to take a significant pay cut at one point due to medical reasons and I agreed to support her with a career change as she re-established her career - had to get a new degree and experience in a new field altogether. (cohabitated at the time, but not married) (in total, cohabitated for 5 years, married for 3 of those years).

2) She can make the argument that she could have made more money in the last year of our relationship by working elsewhere, but she chose to stay in an effort to support me because I was making more money then. If she would have been single, she could have made more money oversees, but then again her bills and schooling wouldn't be magically paid by me and her schooling wouldn't have been partly paid by me/us.
So you need to do a lot of research on spousal support. Look up cases in CanLII and see what the reasons were for each one about whether spousal support was refused or ordered. Make a list of all her possible arguments, and see if they are valid. Figure out if there are precedents you could use to rebut those arguments.

I think SS usually only goes by years married, so the cohabitation won't be relevant. But again, check CanLII for precedents. It sounds like you both made sacrifices and supported the other, so hopefully it will all be a wash. If it's one-sided in that her support came before marriage and your support came after marriage, it isn't exactly fair not to consider the whole relationship.

Basically, is she in a better spot financially for having had the relationship? Would she be further ahead if she had broken up with you instead of marrying you? Same goes for you. How much financial benefit did you derive from those three years of marriage, at her expense? What if both of you had never met and continued on the trajectory you had been planning before you met/dated?

Most importantly, what was her rationale for waiving SS in your original agreement? What do you think is her motive for reopening it now?

Even if she turns out to be entitled to SS, because your marriage was short, it would only be for a year or two at most.

So after you've done your research, figure out how likely you think it would be that a judge would order SS. A lawyer's advice here will be invaluable, but you'll save a lot of money by having specific questions to ask instead of just going "tell me all about SS." If in the end, you think she has a good case for SS and your rebuttal would be poor, make an offer to settle to avoid court. Eventually, you reach a balance point between how much SS she might be entitled to against the cost going to court to fight her would be.

If you do offer to settle though, make SURE that your new agreement includes a waiver of future SS on her part.

Quote:
Originally Posted by mathatter89 View Post
If disclosure is done as of date of separation, then why am I forced to (as part of the form) list YTD income and forced to attach the most recent paystubs?
It's a generic form, and the information about most recent income is extremely relevant to child support determinations, because CS varies with income.

Income, assets and debts as of date of separation are used for equalization and SS.

Of course, your ex would like to see most recent income so she knows how much more money you make now that she could possibly get a piece of. If you do decide to disclose current income, make sure you get hers in return.

You know, rereading your original post, you didn't even mention SS. It was us that brought it up. Is she even asking for it? Or does she just want equalization redone because she's realized you did it wrong?

Last edited by Rioe; 06-08-2017 at 09:47 AM.
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  #27 (permalink)  
Old 06-08-2017, 09:55 AM
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Rioe - actually he did bring up "spousal support payments" in his first post (3rd or 4th paragraph).

I otherwise agree with Rioe.

You will have to wait and see what the other side proposes. I have a feeling there will be focus on the so-called equalization as the rationale is not common IMO (doesn't mean that it isn't legal though).
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  #28 (permalink)  
Old 06-08-2017, 09:55 AM
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Originally Posted by Rioe View Post
So you need to do a lot of research on spousal support. Look up cases in CanLII and see what the reasons were for each one about whether spousal support was refused or ordered. Make a list of all her possible arguments, and see if they are valid. Figure out if there are precedents you could use to rebut those arguments.

I think SS usually only goes by years married, so the cohabitation won't be relevant. But again, check CanLII for precedents. It sounds like you both made sacrifices and supported the other, so hopefully it will all be a wash. If it's one-sided in that her support came before marriage and your support came after marriage, it isn't exactly fair not to consider the whole relationship.

Basically, is she in a better spot financially for having had the relationship? Would she be further ahead if she had broken up with you instead of marrying you? Same goes for you. How much financial benefit did you derive from those three years of marriage, at her expense? What if both of you had never met and continued on the trajectory you had been planning before you met/dated?

Most importantly, what was her rationale for waiving SS in your original agreement? What do you think is her motive for reopening it now?

Even if she turns out to be entitled to SS, because your marriage was short, it would only be for a year or two at most.

So after you've done your research, figure out how likely you think it would be that a judge would order SS. A lawyer's advice here will be invaluable, but you'll save a lot of money by having specific questions to ask instead of just going "tell me all about SS." If in the end, you think she has a good case for SS and your rebuttal would be poor, make an offer to settle to avoid court. Eventually, you reach a balance point between how much SS she might be entitled to against the cost going to court to fight her would be.

If you do offer to settle though, make SURE that your new agreement includes a waiver of future SS on her part.



It's a generic form, and the information about most recent income is extremely relevant to child support determinations, because CS varies with income.

Income, assets and debts as of date of separation are used for equalization and SS.

Of course, your ex would like to see most recent income so she knows how much more money you make now that she could possibly get a piece of. If you do decide to disclose current income, make sure you get hers in return.

You know, rereading your original post, you didn't even mention SS. It was us that brought it up. Is she even asking for it? Or does she just want equalization redone because she's realized you did it wrong?
1) I will review CanLii once I get back a bit later, have a meeting with a lawyer shortly to prepare for.

2) As I have not gotten a reply to my application for divorce from her lawyer, I don't know what she wants (as indicated upthread). I am speculating with all of the help provided here. - it would make sense she is now applying for SS, but I have not confirmed this. (if she's dropping $5K on a retainer, clearly she believes that she can get more out of this than the $5K, and the only way I see this happening is if she comes after SS.

3) After cohabiting for 2 years, we got married. Her family supported her expenses during cohabitation (half of rent, her share of phone bills etc) and I supported my half. During this time of cohabitation, that's when she decided to go down another career path. Before marriage, she had begun schooling for her new job, and after we got married, that's when all of the expenses fell on me. I feel like my argument is stronger than hers as while she was making an income prior to job shifting, she ended up making no income for 2 or so years (year 1&2 after we got married) and then ended up making a small income (last year, final year of marriage) I suspect she made around $35-$40K - waiting on her financial disclosure)\ to confirm.

4) Her rationale of waiving SS was to get the equalization payment within a few days after separation and the idea was that we wanted to reduce legal fees and she was willing to sign on the separation agreement line if she waived her SS payments.

So going back to SS

For her:
Cohabitation - maybe $20k/year?
Beginning of marriage - no income
End of marriage <$35-$40K>

During this entire process, either her parents supported her (cohabitation) or I supported her -since getting married (rent, groceries, bills, all paid by yours truly). I'm going to guess that if anything this helps my case....thoughts?

*Yes, I realize not everything is cut and dry but that's my initial observations of which I will be conveying to a lawyer in 2 hours.
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Old 06-08-2017, 10:44 AM
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During this entire process, either her parents supported her (cohabitation) or I supported her -since getting married (rent, groceries, bills, all paid by yours truly). I'm going to guess that if anything this helps my case....thoughts?

*Yes, I realize not everything is cut and dry but that's my initial observations of which I will be conveying to a lawyer in 2 hours.
Not sure you'll see this in time to add it to the discussion, or if this lawyer is already explaining things, but it's actually the opposite. The fact that you were willing to support her while she had zero income has created a precedent that you support her. It hurts your case. You've basically given the impression that she was never expected to support herself, that you took over where her parents left off, and would presumably have kept doing so if the marriage hadn't broken down.

You will need to spin it that you already supported her to get her ready for a good career, your support was intended to be finite for that purpose, and she is now is making income from her new career and is ready to be financially independent.

I think your first priority is getting equalization sorted out. It may be that you overpaid it or underpaid it. If you overpaid it, you can argue that she's already had extra money and doesn't need anything else. If you underpaid it, you can argue that you'll pay her the proper amount now and she doesn't need anything else.
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Old 06-08-2017, 10:55 AM
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Rioe - actually he did bring up "spousal support payments" in his first post (3rd or 4th paragraph).

I otherwise agree with Rioe.

You will have to wait and see what the other side proposes. I have a feeling there will be focus on the so-called equalization as the rationale is not common IMO (doesn't mean that it isn't legal though).
Rereading it again, he still only mentioned SS in a context that mixed it up with equalization. Then he said he was waiting to see if she was applying for it.

Yes, waiting to see what she proposes is a key thing here. It's good to anticipate worst case scenario, but don't get too stressed about it.

But definitely go over equalization and figure out if it was done correctly or not, and who might still owe the other money. Conflating equalization payment with SS is a huge indication of people not understanding the process so there may have been other mistakes.

You determine her assets and debts at marriage, and her assets and debts at separation date. You see what her change in net worth was, over the course of the marriage.

You determine your assets and debts at marriage, and your assets and debts at separation date. You see what your change in net worth was, over the course of the marriage.

One person pays the other an amount that makes the two people each have the SAME change in net worth over the course of the marriage.

The people's individual incomes during the marriage are completely irrelevant.

There are lots of past threads around here of calculation examples.

Once he has that corrected, he can worry about the rest of it.
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