Overpay of SS retro owed on CS

[raerae]

Hi all, wonderful site.. hoping to get some opinions.

Current husband and his ex's history

They lived together including marriage for 6 yrs, had 2 kids. Separated in 1998. Kids are now 18 and 16.

He has been paying spousal support of $1000 per month for 10 years as of this month.

She has been living common law with same partner since 1998.
She has been working F/T or P/T since 2005. Common law partner working full time.
Original spousal support order made based on "disability" which made her unable to work. She was to provide income statements, medical updates.. never did.

2 Children, one with us since 2005 (18 yr old), other 50% since 2005. Mother has custody. Been paying original court ordered amount of child support since even though income did rise substantially for 3 years. Child Support calculations show 15k retro owed based on this info. Husband has always paid 100% of all sec 7's, college tuitions, medical etc.

So... child support retro of 15k owed - ex says 35k based on her having "custody" of the one that was living with us, however we have ample proof to show she was indeed living with us.

Spousal support overpaid (lawyer says no precendented cases of spousal being retroactively discontinued)

husband offered her $35k payout for child and spousal last Nov (to discontinue payments) she said no and took him back to court. Settlement conference now booked for January.

-Will we have to pay her out or will overpayment of spousal likely wipe out child support retro if this goes to trial?
-Should husband keep paying $1000 spousal a month til this is over, seems like she's dragging it out?
-Anyone know what the likely outcome will be?

[raerae]

Only update is he again offered her a one time 35k payment for retro child and requested spousal be discontinued. She said no, awaiting settlement conference.. these things sure DRAG out!

[ikikass70]

I have a couple of questions:

Why do you say that spousal support was overpaid? Was there a timelimit?

Also, was the spousal determined when she was living with common law? And, was there no clause put in about co-habitation?

Why is she claiming retro-active support for a child that wasn't living with her?

Do you have proof that the other child is living with you 50/50?

Lastly, why did he offer to pay 35k? Just as an offer to settle to get it taken care of? Was anything in writing?

When is your settlement conference?

Are you (your spouse) represented? Is she?

[raerae]

Spousal has been overpaid according to our lawyer (yes he's represented) at or about the time that her and her new partner had been co-habiting longer than he was originally with her. Lawyer says overpaid but should have taken her back to court years ago. Spousal was determined when she was with common law.. however they conveniently broke off before the three year mark for three months over the time the trial went therefore he was ordered to pay spousal.

She is claiming retro for the child not living with her.. because she thinks she can. She claimed to the gov't that she was living with her and had a court order saying she had sole custody so she believes she is entitled. We have ample evidence to the contrary.

Yes we have proof of 50/50 split for the one not living with us but it doesn't matter much because she doesn't have an income anymore so there is no offset. She also stopped working when she filed this motion.

He offered 35k to stop the whole thing, that was her claim and he just wanted it done. She talks to the children about it constantly, one even entered counselling because she was so upset about being pushed in the middle. He expects to continue paying full child support for the one that is 50/50 but does not want to continue paying spousal as well. Her lawyer sent a response letter saying she is not "settlement minded" and so would not accept the more than reasonable offer. She has told him directly she wants to go to trial.

Settlement conference? Ha.. her lawyer says no to every date presented or simply does not respond... it's been 6 months since the case conference, they skipped questioning but no settlement conference booked.

[FL_Needs_To_Change]

Look at it this way, since there has been an offer to settle, and she has chosen to take the issue to court instead, if the court orders something similar to or better then the settlement offer (from the offering person’s perspective), then the courts will award costs of litigation to him, so she'll be on the hook for her court costs as well as his.

Also, if it can be shown with clear documentation the status of where the children live then CS will be set relative to the CS guidelines; it has nothing to do with what she thinks she's entitled to.

For the child living full time with dad, she is and has been responsible for CS of that child and courts have on numerous occasions set arrears for these types of situations.

For the child living 50/50 with both parents. Again if this can be documented the court will use the table CS to determine what each party would have been responsible for, even though there is a period where she was not receiving income. They will simply calculate CS based on the times she was receiving income.

Then the courts will look at her situation as of now, and set CS accordingly. If she is unemployed, then there will be a clause added that once she receives any income CS is to be adjusted.

Even though she may not have contributed to post secondary costs, this does not mean she wasn't responsible on some level. And this too can be factored in if need be.

With the info provided it appears to me that a court would rule in the favour of the father as he has been more stable and had a greater role as parent in the lives of the children relative to the mother.

As for the SS. This can swing either way.
You indicated that SS was set relative to a disability, I would seek to have this adjusted simply because it is apparent that she is capable of earning an income and has demonstrated this ability from the separation date through 2005, and full time in 2005. This clearly says she is capable, thus the calculations used to set SS was flawed and it needs to be readjusted to factor in her ability to earn an income. If she is unemployed at the time, seek to have an income inputted to her relative to her past work history, this will greatly reduce any SS obligation, (it may also factor when determining CS). Also, if the court feels, for what ever reason, that she is still entitled to some form of SS, seek to have a time limit set on it. If they rule (based on length of the relationship and anything lost as a result of the marriage or subsequent breakdown) that she would have been entitled to say 6 years of SS at which time it would terminate or be reviewed, request that the years of payment be seen as time served (paid). So basically even though the courts may determine that she was entitled to some SS, with a time limit less then what was actually paid, then the courts too realize she has been more then compensated and SS should be terminated, without having to offer her anything IE the 35K buy out.

I think she is not in a good position, and may be ordered to pay CS and SS is to be terminated based on the info provided.

[Fair4All]

Hi,

Just my 2 cents' worth...

I agree with your husband's lawyer that SS is not likely to be retroactively discontinued, so the CS arrears would not be wiped out.

I can see why the ex is dragging this out - basically the offer of $35K only gives her $20K in SS - less than two years on the current schedule. If she can drag the case out for a year, and then accepts the deal, she's "made" an extra $12K.

I would hope (one can never guess what a FL court will decide), that based on the fact that she was working and then suddenly quit when she filed the motion, that the courts would impute an income to her. Then, based on the imputed income and her common-law relationship, order the SS to be reduced for a certain period of time and then ceased permanently. Because she still has a child living with her, I don't think the courts would cease SS immediately.

Seems like she knows all the tricks - when the recipient of support: keep the status quo for as long as possible; claim to be not able to work; and claim to be the most important parent. With this last point, the court may look more favourably on your husband if he were to start payments towards the CS arrears before waiting for a court agreement stipulating such. Also, with the increased payments toward CS, his financials will show less disposable income that can be used towards SS. Check with your husband's lawyer if this is a strategy that could be helpful.

Also, look at the tax implications of paying SS in a lump sum - CRA rules may be different for lump sum payments than for monthly payments. It may be in your husband's best interest to pay reduced SS (hopefully this is what the court will order) than pay a lump sum. Why "reward" the ex with a big cash pay-out? Especially when there is jurisprudence of an individual accepting a cash pay-out, only to go to court years afterward asking that SS be reinstated - and having the court agree.

[raerae]

We're considering just giving her 15k now, because that is what we believe is actually owed in retro support.

Her CS payments are going up drastically based on an increase in income last year (just got the T4 so we're going to go ahead and adjust it now instead of waiting til "tax time") We have considered raising child support and just stopping paying Spousal but .. we don't want to go against the court order..

Does this seem reasonable or should we wait until he is "told" to pay the 15k? Basically we have the money and want it to go to taking care of his daughter instead of this dragging out until after the last child isn't even in her care and then being told we have to give it to her.

Opinions would be appreciated! Thanks

[AtALoss]

Just stopping the support can be a big mistake, before considering doing anything like that try very hard to settle it in and out of court. Think of it as a last resort as the consequences are harsh.

Back in 2004 my spouse did so (his kids were 25, 24,and 20) at that time. The ex would not give it up and FRO failed to aknowledge this. Oh as well none of the kids went post secondary and there were grandchildren in the picture.(youngest was pregnant and 2nd had a 2 yr old) So here we are in 2009. As of Dec 08 we finally got a court order stating that there should have been no support paid what so ever since 2002.
In 2004 to 2005 he accumulated arrears and in 2005 FRO managed thru thier colection measures to take his business and home away and reduced him to being homeless. As it stands our lawyer/us feel that FRO owes him $36,000 in a support over payment. While they have released him of that finally we are still having to fight very hard in court to see any of that back. So as you can see that choice while sometimes neccisary can be a very harsh road to walk.

[raerae]

Does it really not matter that they were only together for 6 yrs and she has now been with someone else for 11?

We have decided to give her the 15k mentioned just because we have it available without getting another loan and we know he owed her something in retro child (our calculations are 15k) and it sounds like everyone thinks he will not get compensated for paying her spousal support for the last 10 years. Will he look more reasonable to a judge when the end comes for giving her the 15k?

We also are not going to just drop spousal support.. although we sure want to.. I haven't figured out yet how we're going to handle paying spousal and an increased amount of child support.. Spousal support just can't last forever.. *fingers crossed*

[FL_Needs_To_Change]

I personally think giving her the 15k is not a good idea.
It sets a precedence that you cannot continue.
I would continue with the court ordered support, adjust the CS relative to the income voluntarily.

Document all payments to FRO via registered means or similar tracking means.
Once this is in front of a judge, you can outline what was ordered, what he paid, how his income changed and that he voluntarily adjusted CS.
Go on to include that one child, although custody ordered to the mom was living with dad from date to date, and clearly indicate how much CS was paid to the mother for this child that should not have, but make it sound like dad will take full responsibility for not taking the matter to court earlier and let the judge decide on retro CS overpayment, it is rare but has happened and was a credit to future payments which means no CS paid until arrears catch up to the payment amounts.
Also, demonstrate the 50/50 for the second child; again show what was paid, what should have been paid relative to the federal CS guidelines.
Sum up the CS in a line or two this is what was paid, this is what should have been paid, this is the difference.

Do the same for SS. Show she was deserving at the time of the order, show payment history, show she became able to be self supportive over the last X years and seek to have an income inputted now that she has "lost” her job. Seek to have SS eliminated, as the relationship was only 6 years, she was paid 11 yeas or what ever it was, and has been self supportive during the majority of this time frame. Use the new SSAG to show where she would be with SS if they were applied with the current circumstances.

If you do not slander the mom in any fusion and stick to the facts, make sure not to leave anything to assumptions, not even basic math, the courts will see that he did over pay CS and SS, and then it would be up to the judge to decide is any of this will be deemed overpayment for reimbursement. Remember now that mom is not employed, even if intentional, if a court ordered that SS or even CS were to be reimbursed, it would cause financial hardship. Hopefully the short relationship, coupled with her demonstrated ability to support herself is enough to get SS eliminated. CS is usually black and white. They will look at the living arrangements of the children and the income of the parents and set CS.