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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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Old 09-17-2010, 01:35 PM
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Default clause in agreement - is it enforceable

Hi,

I have two questions and would appreciate any advice:

1. My husband has suggested that we add a clause in our separation agreement something like this.

"Should the parent be unavailable to take the children on their scheduled day, then that parent would pay to the other parent X $$ for each day that the parent is unavailable to take the children."

I personally see no reason for a clause like this. Does anyone know if this kind of clause would be enforceable by the FRO? How would one prove that the other spouse didn't take the kids on their scheduled day.


2. I am not taking an equalization of my husband's pension and had expected that in return I would receive a waiver of spousal support. However, my husband has said that even if I don't take the equalization, he won't waive this right. He has not been a stay at home dad and my sister in law recently told me that my soon to be ex has stated that if I 'piss him off' he will seek spousal support from me. To make matters complicated, my husband is currently employed but being medically released from the military although going on some sort of re-training program for two years after which time his income will drop to his pension benefits only (indexed for inflation though).

I was advised that at the very least I should add a statement to the agreement that the reason I am not taking an equalization is in recognition of the fact that I would not have to pay any future spousal support. However, my husband says that if I am adding a clause he will have to add his own clause (about what, I don't know).

I have done some reading about spousal support but find it confusing. Am I correct in my interpretation that not only would he have to prove that he has a need for support, but also that I have the ability to pay? Also, how long after the breakdown of a marriage do the courts generally consider that there is still an obligation to pay.

Thanks.
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Old 09-17-2010, 01:41 PM
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1.The FRO enforces support orders, not contracts between spouses for babysitting. Moreover, putting a clause like that in your order is and sounds ridiculous. Parents don't charge for babysitting. Parents are parents, they hire babysitters or babysit other parents kids, they don't babysit for money their own kids.

2.You should run the numbers to get a feel for your share of his pension afterwhich you will be in a better position to evaluate this question. You're right about SS, it's more art than science, but if he was a stay at home dad and gave up a career to look after the kids, he has a claim.
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Old 09-17-2010, 01:53 PM
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#1 is pretty much the most ridiculous concept I've ever heard.
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Old 09-17-2010, 02:01 PM
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Clause 1 is kind of like a right of first refusal. My agreement provides this:

Quote:
Right of First Refusal – Me and Ex believe it is in D's best interest that D spends time with her other parent rather than a third party. Accordingly, if either of Me or Ex cannot care for D, Me or Ex will notify the other party and give each other the opportunity to do so. If the notified parent cannot care for D, the other will make childcare arrangements at their own expense.



The wording provided for would pretty much kill the intent of a ROFR as the parent needing the assistance would just call a babysitter instead, which may be cheaper. Notwithstanding the fact that ROFR are virtually impossible to enforce as it stands.

No parent should have to be paid as a babysitter to look after their own kids.
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Old 09-17-2010, 02:07 PM
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Quote:
Originally Posted by CMG View Post
I was advised that at the very least I should add a statement to the agreement that the reason I am not taking an equalization is in recognition of the fact that I would not have to pay any future spousal support. However, my husband says that if I am adding a clause he will have to add his own clause (about what, I don't know).
There is a problem here, that if you add the statement, he may not sign the agreement. One party cannot abitrarily add clauses to an agreement, because then it isn't an "agreement". Only a judge can make such changes.

Could you imagine the craziness these would turn into if each person could say "I am adding", and in retaliation the other person goes "ok, I will add this".

Also, with regards to spousal support, there have been cases where spouses have waived their entitlement or actually been paid out, and then came back YEARS down the road and the courts have ordered more payments be made....so be weary as even if he does wave his entitlement, that doesn't mean he won't ever be granted it by the courts.
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Old 09-17-2010, 02:09 PM
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Yeah, I think it's ridiculous as well and I'm sure it is financially driven. We had agreed on a parenting plan but as soon as he saw an amount for child support he decided he wanted to change the plan. Since that time he has made the following suggestions:

That I bill him at the end of every month for child related expenses;
that we go 50/50 on paper but could have a slight variation agreed to between the two of us; and now this weird clause.

When he suggested 50/50 I thought long and hard and had several discussions with people about the fact that perhaps he would step up to the plate and be a parent and if so, that it would be in the best interests of our kids and so had decided to agree to it. However, when we started actually discussing what the arrangements would be and he suggested this clause I knew that it in fact is still about $$ and not about being a parent. It makes me very sad.
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Old 09-17-2010, 02:20 PM
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Hammer dad:

We discussed right of first refusal and had agreed to it but this clause is something else. I can't imagine ever asking my ex to pay me for the odd day when for some reason he couldn't see the kids. My fear is that this is a tactic to not pay child support and only see the kids when it is convenient for him.

With regards to the agreement, I agree, I guess if everyone decided to add statements to their agreements, they could be hundreds of pages long. I guess I just have to weigh whether or not I am willing to sign an agreement that doesn't include this waiver, while waiving my own right to it and worry about arguing why I didn't take an equalization later should he decide to take me to court.
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Old 09-17-2010, 03:00 PM
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[quote=CMG;47816]Hi,

1. My husband has suggested that we add a clause in our separation agreement something like this.

"Should the parent be unavailable to take the children on their scheduled day, then that parent would pay to the other parent X $$ for each day that the parent is unavailable to take the children."

This clause, as I understand would be for parenting time scheduled but unable to exercise? If that is the case, I would say DO NOT put it in. That limits you from any flexibility for work, travel, illness, etc which is absolutely unreasonable...how much is your ex figuring the $$ amount should be? That places a dollar-amount on the time with your children, and the courts would not enforce such a clause, and it could lead to long-term litigation over and over again.

A better clause would be more, "If a parent is unable to exercise their parenting time, they shall provide the other parent XX hours/days notice. Any expenses incurred by the parent to facilitate access where no access occurs, and notice has not been provided as per the timelines outlined herein, shall be reimbursed these reasonable expenses upon delivery of receipts."

I am assuming he expects you to be unable to utilise your parenting time, and what you do with it-RoFR, or sitter, or family member watching kids-is your decision while the children are in your care and control.

As for the spousal support and equalization, you will want to be very clear in the agreement tying the two together...

"X will relinquish her right to any current or future claim for equalization payments with the understanding that Y will not now, or in future seek spousal support payments from X"
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Old 09-17-2010, 03:21 PM
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Thanks Interprovincial.

This clause is not in case I don't exercise my scheduled time as there is no requirement to travel in my and I am the primary caregiver for our children. I suspect that my ex husband wants this clause in there because he will not exercise his right to have the kids 50/50 but wants it in the agreement to avoid child support and/or he is planning a trip around the world and I guess expects (rightly so) that I will look after our children while he is gone. That said, I would have no way of actually getting this money should he decide to on the trip.
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Old 09-17-2010, 03:54 PM
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If he is going for 50/50 for lower CS, you want a clause that automatically changes child support every January based on the last year's income, as well as a clause that states that Child Support shall be calculated to remain in compliance with the Guidelines once per year (usually January 1)...then you will have to keep absolute track of his cancellations. Problem with it is that then you either need to get his consent or apply to court to change it if he disagrees...
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