Support calc 50/50 split, disproportionate income

[standing on the sidelines]

Originally Posted by Paytable2

;The only caveat here could be there has been a shortfall of support over 2 years as my income changed and I adjusted it when it went down but not when it went up (she also did not ask until very recently).
As it stands I would owe her some arrears I'm sure if it was to go to court, in the area of $4500.

My feeling is that she would seek the arrears, and I would be ordered to pay by a judge but would that prevent them from ordering the offset method or would it likely be they order offset and tack on the arrears?

Thanks again.

So you adjusted it when your income went down but did not voluntarly adjused it when your income went up. Just because she did not ask is not a good reason. Did she ask you to adjust it down?? You had me agreeing with you somewhat until that post. You want to pay her less becasue she remarried but did not want to pay her more when you made more money. You are not going into court with clean hands so be very careful. The judge may nail you with that.

[Paytable2]

Our S/A was written not written by lawyers, we did it.
What is says is fairly vague, and uses the word "guideline" but not really in a way that refers to the federal guidelines (although that is what the intent was)
Exact wording:

The husband shall pay to the wife for support of the children the sum of X $ monthly net of tax based on the payor's GUIDELINE income of X $.... the amount of support may be reviewed and adjusted annually at either parties request. Both parties are to provide proof of income annually upon request.

It should have been worded "based on the federal guidelines and the payor's income...."

The next section dealing with sec 7 expenses stated that "with the payor paying full guideline support amount and having nearly 40% access there will be no additional section 7 expenses."

The intent was to follow the guidelines and table amount which has been the practice up until the change to 50/50.

So my S/A does specify "guideline" although poorly worded. It has the amount also but that was simply to state what the support would be as of the signing of the agreement as the provision of adjustment annually was included.

Not sure if this is enough to justify unilaterally applying the set-off method and pointing to the guidelines sec 9??

[Paytable2]

Originally Posted by standing on the sidelines

So you adjusted it when your income went down but did not voluntarly adjused it when your income went up. Just because she did not ask is not a good reason. Did she ask you to adjust it down?? You had me agreeing with you somewhat until that post. You want to pay her less becasue she remarried but did not want to pay her more when you made more money. You are not going into court with clean hands so be very careful. The judge may nail you with that.

Understood. You are correct that I did not volunteer to adjust it up and that I unilaterally adjusted it down due to income change. I did adjust it back up immediately after she asked but there is a period of about 24mos where my income had changed marginally upward (roughly 50% of the reduction the first year and to within 20% of the original income by the second year).

To be clear, I am not asking for a reduction in CS because she remarried, it is due to the change in custody to 50/50. The discussion on remarrying is simply trying to assess if that negates her claim for undue hardship if we use the set-off method for CS.

I would fully expect that she would argue for arrears due to that 2 year span and that a judge would agree with her claim, so be it, I have no problem paying it back but the support issue is what is important.

This is a recent thing, the issue of arrears, and I could possibly offset this if I court were required by writing in my application that there are arrears of approx $4000 that I will voluntarily reimburse over X months. Not sure if a gesture of goodwill will carry any weight or not?

DO you think that because of a literal translation of our S/A that a judge would deny the setoff method outright?

[billiechic]

Here is an option for you.

Write letter informing her that you will now be paying offset, as per Section 9 of the Guidelines and the terms of the SA. If she balks at this, or brings up the arears, you offer to pay proportionate Section 7 expenses and to pay back arrears over X months.

That will give her NOTHING to stand on.

[Paytable2]

Biliechic, I think that sounds like my only real move here.
I just want to be treated fairly and the offset method seems fair given 50/50.

Tks

[InterprovincialParents]

As for undue hardship, claimed by either spouse:

It is a very high threshold to meet, and from the household incomes of both of you, it seems unlikely to be granted. However, other factors enter in, such as how many people live in each household, etc. If she has a new child, for example...or if you do.

Keep in mind that section 7 expenses are still evaluated based on income ratios, so you would be responsible for the larger proportionate share, regardless of custodial matters. These costs could raise an issue of undue hardship for you, but with shared custody, typically you are able to disagree with an expense if you cannot afford the cost of it. (with the exception of childcare) (and at 90K+/35K, the courts rarely will even consider a hardship claim without a high matrimonial debt, or previous children to support...regardless of what her new partner makes, you still retain your responsibility to your child based on your income)