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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 08-06-2015, 01:59 PM
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Default Spousal support help required

Afternoon,

Question to the forum, now that child support is at an end and our court order says that once child support ends spousal support shall be re-negotiated/looked at.

I for a matter of fact know that her brother lives with her, can I seek to impute rental/room and board income upon her during negotiations?? As the child of the marriage is no longer can I impute income from her also as she is working?

He was living with us since Nov 2009 before our separation and still lives with her.

Wondering if anybody has any sort guidance or suggestions to help me with this as I am self-representing.

Thanks all
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Old 08-06-2015, 02:29 PM
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Does her brother pay her room/board and does she declare this on her income tax as rental income?

Did you and your ex exchange income tax returns each and every year?


Before you do anything you should review the information (tax returns carefully).

Just to play the "devil's advocate" I might argue that your ability to pay spousal support has now increased.

Assuming that you have exchanged financials, you can now put your respective line 150 numbers into the SSAG calculator (now using the "without children" formula) and see what the SS range is.

Of course SS is different from CS and it is determined on a case-by-case basis - nothing written in stone.
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Old 08-06-2015, 02:34 PM
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I don't know the exact answer to your question, but I do know that in other areas of law, family members are not treated as sources of income or service providers (for instance, on your taxes you can deduct the amount paid to a non-relative for caring for your child, but not the amount paid to a relative). So imputing income because she has her brother staying with her seems risky to me. Because he is a family member, it would be reasonable to assume that her household costs have gone up, so even if he is paying rent to her (which you don't know for sure), he is presumably also included in her expenses for food, utilities and other consumables.

Same with the adult child - I doubt you could count her income in her mother's income unless you know that the adult child is paying the mother for something or other.

Imputing income is difficult and involves assessing the employment prospects for the ex - it's not just a matter of saying "well, her brother is sleeping in the spare room and she could get $800 if she rented it out, so let's add $800 to her reported income", or "her daughter is working so let's take half the daughter's pay and assign it to the mom". I wouldn't take this on as a self-rep.
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Old 08-06-2015, 03:10 PM
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In what I've read - for SS recipients the fact they have somebody contributing to their shared expenses reduces their need.

However, the fact you have not ever leveraged it - I don't think you can bring it up now...
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Old 08-06-2015, 04:20 PM
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In all the times my ex took me to court to reduce/eliminate SS my adult son's living with me was never an issue nor contemplated for reason for my ex to reduce SS. If my ex had filed an application claiming "undue hardship" then I believe the income of all people living in household is considered.

I can assure you that my ex explored every option.

I can remarry or cohabitate and neither would affect my SS entitlement. Had it been specified in our divorce Order then, and only then, would it be relevant.
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Old 08-06-2015, 04:56 PM
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Quote:
Originally Posted by arabian View Post
In all the times my ex took me to court to reduce/eliminate SS my adult son's living with me was never an issue nor contemplated for reason for my ex to reduce SS. If my ex had filed an application claiming "undue hardship" then I believe the income of all people living in household is considered.

I can assure you that my ex explored every option.

I can remarry or cohabitate and neither would affect my SS entitlement. Had it been specified in our divorce Order then, and only then, would it be relevant.
Your entitlement is 95% compensatory so it is different.
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Old 08-06-2015, 05:12 PM
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I possess no document whatsoever which specifies SS is 95% compensatory. Only reference in it is "indefinite" which is good enough for me.
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Old 08-06-2015, 07:39 PM
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OP.....refer to the case in the link below. You might have to file a motion to have your CS and spousal support officially, or in the case of the latter get a cascading break. The Judge saw through what the payee was doing, and lambasted her for not making an effort to gain employment.

Quote:
[110] The evidence indicated that the mother has made little effort to become self-sufficient since 2007. She has not attended any retraining courses. She has not actively sought work. She didnít provide the court with a meaningful job search list. I have drawn an adverse inference against her due to her failure to provide this. See: Filippetto v. Timpano, 2008 CanLII 3962 (ON SC), 2008 O.J. No. 417 (SCJ).
[111] The mother also failed to advise the father, as required by the existing order, about any part-time employment she obtained.
CanLII - 2013 ONCJ 242 (CanLII)
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Old 08-06-2015, 11:27 PM
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I believe the OP said that his ex is now working so it's not a matter of her not looking for work.

Yes, depending upon his circumstances (which he has not elaborated upon) he could seek having SS gradually reduced by way of a "stepped-down" method, however, he would have to prove many things.

How many years married? How many years was his ex out of the workforce? Did she leave the work force at any time due to the nature of his work (relocation)? Was there marriage long term where she was in a traditional role as home-maker? How old is the ex?

Depending on many of the variables mentioned above (and there are many others) quantum and duration is determined. It is not a simple equation like child support.

Some of those "different" variable can also include if they are self-employed - how much money did she invest in the family business? Did she give up a career early in her marriage to raise the children, help him with his business/employment?

Important issues are how many years were they together (not necessarily married) and how old are these people?
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