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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 06-28-2016, 03:30 PM
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Default Does ending of Child Support mean a Material Change in Circumstances?

Negotiated a Separation Agreement 3 years ago. Had 3 university aged children and all are done school, so CS obligations have now ceased. The SA was negotiated with legal counsel present and all affidavits signed accordingly.

SA states that Spousal Support is to be paid at $XXXX per month. It is a FINAL amount, however may be reviewed and varied if there is a material change in circumstance, regardless of whether the change was foreseeable or not.

My ex is claiming that now that CS is done, this is a material change and therefore, spousal support should be varied accordingly. I said no, this is not a material change because this was known at the time that CS would end in a few years and they could have asked for higher amounts then but didn't.

My lawyer is saying "it can be considered..." but I am seeking other perspectives, even a second legal opinion.

Thoughts anyone? Does the end of CS meet the material change test that seems to be well established/defined?

There appears to be case law that supports both view, as usual.

Thanks.
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Old 06-28-2016, 04:21 PM
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Hello

I'm not a lawyer but I am in a similar situation and have found a change in C/S support, possibly offsetting SS is considered a Material Change in circumstance. It sucks as some CANLI case law almost implies a monetary penalty against the payor.
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Old 06-28-2016, 06:53 PM
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Thanks for the reply. I am not sure we are talking about the same thing? I am not familiar with the term "offsetting" spousal support. That said, if a material change is considered, it seems crazy because that means C/S is nothing more than tax free spousal support.

Child support is supposed to benefit the child, so why should ending of child support mean an increase in spousal?

If anyone out there has any good canlii cases on material change circumstances that were "tested" when child support ended, I would appreciate links to such cases. I am hoping to find cases where the test succeeded and that spousal support amounts remained as they were.
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Old 06-28-2016, 07:32 PM
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Quote:
regardless of whether the change was foreseeable or not.
Where is that statement from?

Was there any discussion about what happens when child support terminates?
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Old 06-28-2016, 07:37 PM
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That statement is in my SA. And there was never a discussion about what happens when CS terminates. I was under the impression it was Final unless a material change in circumstance happened. This is what my ex is arguing.

It never was brought up by her or her counsel at the time we negotiated the SA.
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Old 06-28-2016, 07:40 PM
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I think the statement "regardless of whether the change was foreseeable or not" is problematic. This essentially, in my opinion (and I'm not a lawyer), gives her leave to have a review.

I'd get legal counsel and examine the "nature and intent" at the time the agreement was signed.
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Old 06-28-2016, 07:43 PM
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That problematic statement was put in by my lawyer, one of the best family law practitioners in my area. And he knows full well that the nature and intent was that spousal was "final" at that time, subject to review/variation of a material change in circumstances.

He insists this is standard language...
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Old 06-28-2016, 07:47 PM
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A standard statement ? Perhaps he has primarily represented women seeking increase in SS?


I wish my lawyer had put a clause in there like that....

I'd seriously consider another lawyer or.... ask him how he is going to fix this to reflect the original intent of your agreement (at his expense of course).

Fuckwit or what.
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Old 06-28-2016, 09:11 PM
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Quote:
Originally Posted by KW_Divorced View Post
Negotiated a Separation Agreement 3 years ago. Had 3 university aged children and all are done school, so CS obligations have now ceased. The SA was negotiated with legal counsel present and all affidavits signed accordingly.

SA states that Spousal Support is to be paid at $XXXX per month. It is a FINAL amount, however may be reviewed and varied if there is a material change in circumstance, regardless of whether the change was foreseeable or not.

My ex is claiming that now that CS is done, this is a material change and therefore, spousal support should be varied accordingly. I said no, this is not a material change because this was known at the time that CS would end in a few years and they could have asked for higher amounts then but didn't.

My lawyer is saying "it can be considered..." but I am seeking other perspectives, even a second legal opinion.

Thoughts anyone? Does the end of CS meet the material change test that seems to be well established/defined?

There appears to be case law that supports both view, as usual.

Thanks.
these two statements conflict each other. Your agreement states changes that are foreseeable. Then you say that the it isn't a material change as it was know at the time... which means that it was foreseeable.
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Old 06-28-2016, 09:49 PM
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TEMPLATE?

I learned early on in my litigation years to very carefully check each and every document my lawyer prepared. When I didn't check things carefully mistakes were made and came up years later in court.

Perhaps the client, in this case, trusted the lawyer a little too much?

It doesn't make sense to me to have an agreement which contravenes "material change of circumstance" which, if you look it up, basically means a change that is not foreseen at the time of agreement. So, in his case, the agreement covers child support until there are no long children of the marriage.... end of child support was/is duly contemplated.

Often lawyers have templates which they use, over and over again, and simply do not do proper editing. I found this happened a few times with my lawyer and I was quick to point it out to him when I noticed it.

The poster's agreement is confusing and if/when it goes before a judge the "essence" of the agreement would likely be dissected. Often lawyers keep notes of conferences etc. and it might be worthwhile to ask lawyer to meet to go over his notes?

Last edited by arabian; 06-28-2016 at 09:59 PM.
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