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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 01-06-2017, 01:34 AM
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Default Spousal Support Clause in MoS

Hello,

Well I have a Minutes of Settlement drawn up through mediation today. Its not great for me but I am pretty tired of this process so there was actually a lot of relief. It still subject to obtaining independent legal advice.

After getting home after another full day of mediation, I started having remorse about the Spousal Support clause. The clause has no end date. I raised my concern to the mediator but he said "do you really want to have an end date? It could bind you until that date"

Another thing he said is that I could be responsible for ss indefinitely anyway. He gave the example of my ex having a catastrophic event in the future and I would have to support her indefinately.

We do have a material change in circumstance clause.

Am I responsible for any disabilities that happen after the separation?

Can I have an end date and still have ss discontinued with a material change of circumstance?

I mentioned before that I was married for 13 years. My ex is arguing 14 (12 marriage and 2 cohabiting). Is 1 year worth the fight? Is 14 years still a mid term marriage?

Is being married with 3 kids an automatic entitlement to ss?

I read about stepping down ss. How is that done? Just agreeing to impute a wage after a period of time?

I really don't want to go to court but I don't want to be paying ss for the rest of my life either. The deal she will be getting will make her pretty comfortable while working part time, so she has no incentive to work full time. (She worked full time while married but was laid off after separation)

I read a post about imputing based on a reverse analysis of lifestyle. Can anyone give me some insight on this or case law, or what key words I would use to search the case law?

Thank you
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Old 01-06-2017, 07:08 AM
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To not have a lawyer assist you is not wise. This is an agreement that will affect your life going forward indefinitely.

It is important that you emphasize, several times in your document, that self-sufficiency is paramount. I would recommend that you offer a stepped-down SS schedule. You can do this by having an agreement for gradually increasing imputed income over a period of time. For example, year one (2017) your ex has 0 imputed income. 2018 she has income imputed XXX (part-time work), 2019 income imputed xxx, 2020 income imputed XXX, 2021 income imputed XXX and so on... you can do this for 6 years (.5 of years married which is standard for mid-term marriage). SS to end in 20XX.

It is important to have a clause that you exchange financial information annually.

You can request that SS end in the event of her remarriage etc.

If you want to protect yourself from having to pay for her for a catastrophic occurrence I think it would be cheaper for you to look into some form of life insurance on her for this.

SS is tax deductible to you (payor) and taxable to her (recipient).
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Old 01-06-2017, 10:01 PM
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I concur with Arabian - foolish not to have a lawyer working for YOU to review the draft SA. 14 year relationship (sadly they INCLUDE common law plus married as time "married" for support calculations) suggests a rule of thumb of 50 to 100% duration.

My suggestion is to go for a HARD termination date say after 7 years. By the sounds of it your ex seems lazy (why bother working when she can live off your cash) so I doubt she'll be earning big bucks. Make sure its as bullet proof as possible. That is, no matter what, she's done ss after 7 years regardless of what happens (lawyer can provide exact language).

Yes, by having "material change" vs specific end date you MIGHT get her out of your wallet earlier than 7 years BUT...

-are you prepared for expensive and never ending court battles ?

-reality is the courts tend to be biased against men. I've had a number of lawyers (male and female) tell me this.

-try for a remarriage or common law (say after 3 to 12 months) that spousal stops but I doubt she'll sign it and there is no legal obligation for her to

-As arabian said, take into account you can deduct it from taxes so figure out the marginal tax savings for you. If you're in a high bracket it might actually only cost you 50% on the dollar after you figure in tax savings.

-"peace of mind" knowing you have a FIRM end date.

Good luck - hope things work out.
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Old 01-07-2017, 12:30 AM
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Thank you for your input.

I never said I wasn't going to have a lawyer look at it, I said it was subject to independent legal advice.

What I'm looking to do is to add or change the clauses myself, with the help of the mediator (who was a lawyer) and then get independent legal advice, rather than paying a lawyer to go back and forth with the changes.

Does violence change spousal support amounts? What if it was the cause of the marriage breakdown?
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Old 01-07-2017, 10:18 AM
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Quote:
Originally Posted by Aghast View Post
Thank you for your input.

I never said I wasn't going to have a lawyer look at it, I said it was subject to independent legal advice.

What I'm looking to do is to add or change the clauses myself, with the help of the mediator (who was a lawyer) and then get independent legal advice, rather than paying a lawyer to go back and forth with the changes.

Does violence change spousal support amounts? What if it was the cause of the marriage breakdown?
Depending upon how long your mediator has been out of legal practice, he may or may not be up-to-date on current trends in preparation of separation agreements. Don't assume anything - it is too important.

Young lawyers nowadays have templates on their computers with clauses they are confident in and have used in cases similar to yours (and therefore have previously done research on case law). When you retain a lawyer you ask these sorts of questions. With this in mind, retaining a competent, experienced family law lawyer to prepare a separation agreement should not take an inordinate amount of time. You can do the "back and forth" with your lawyer via the internet.

Cause of marriage breakdown is irrelevant unless you are claiming something like adultery or mental or physical cruelty which disperses the requirement to be physically separated for 1 year. The latter is rarely claimed.

Mediation can be extremely expensive (more expensive than retaining a lawyer to prepare and present a separation agreement to opposing counsel). How much have you spent to date on the mediation? It would not surprise me if lawyers, who leave their law practices to practice mediation, make more money in mediation business.

Last edited by arabian; 01-07-2017 at 10:22 AM.
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Old 01-07-2017, 04:59 PM
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I came across this case Aghast which you might find interesting:

http://www.canlii.org/en/mb/mbqb/doc...16mbqb237.html
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Old 01-08-2017, 10:41 AM
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Thank you arabian.

The mediation cost $4500, lasted 2 days but we got it done. After obtaining some legal advice and reading past posts on this forum, I see that we have a problem with one issue and that is with the ss clause.

It has no termination criteria nor a termination date. I don't believe, for a list of reasons, that she would get compensatory support.

I also think I am overpaying a bit based on her assests, even though it is mid SSAG, but I will suck that up in an effort to finish this.

My fear is that she will try to play hardball and scrap the whole thing. We have a special appointment date in a couple of days. I have no money left. And I mean no money, like $12 a day for food and gas until next paycheque and all the bills still need to be paid. So I can't afford a lawyer to fight this. My lawyer will look over the final draft of MoS for me, but that will be it.

I have to learn how to, and write a factum today.

So, I have a few more questions:

Will a special appointment be adjourned to allow parties to finish negotiating? I know it says right on the paper that adjournments will rarely be given.

Will a judge consider that I spent all my money trying to mediate so I had to fire my lawyer and need more time to present?

How do you strike something from an affidavit? Do you bring it up before the motion starts or is there a special form or do you have to have a motion on its own?

Can you strike something from an affidavit for a motion or only trial?

Can I just take the MoS with my adjustments, and present it as an offer before the special appointment? Is there anything I have to do to it?

Thank you
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Old 01-08-2017, 11:07 AM
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Also, I forgot to ask, can case law from a different province be used? Is it looked at the same?
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Old 01-08-2017, 01:33 PM
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Quote:
Originally Posted by Aghast View Post
Also, I forgot to ask, can case law from a different province be used? Is it looked at the same?
Definitely and you can get some good cases by checking CanLii across the country. My lawyer cited cases (preferably court of appeal) from other provinces.
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