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Divorce Support This forum is for discussing the emotional aspects of divorce: stress, anger, betrayal of trust and more.

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  #1 (permalink)  
Old 11-16-2014, 08:07 PM
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Default Enter the Lawyers in a Very Simple Case

From what I understand after talking to my lawyer, that even after we split everything 50/50 there is still a question of spousal support.
A painful yet amicable split as we realized that we grew apart. Children are adults, and we are employed and stable. We do share a mortgage, a matrimonial home, which we will sell and pay off the mortgage. We lived together March 1999, married Aug 2001 and split last March. My income is 3 times higher than hers and a third of it is commission. I want to take life easy and work on my base pay.
We always worked. Mom didn’t sacrifice or suffer as a result of the marriage. Biodad contributed nothing. I assumed full responsibility of the kids and raised them as my own. My income was always higher than hers even at the day we lived together. We both agree and my Dr agrees that I need to slow down my pace of work. I’ll be 50 and she 44.

But.

My lawyer doesn’t want me to ask for a full spousal release and said I will have to pay her support. I have agreed to offer some. Enough to cover her cell phone, car insurance and property tax. No one is living an impoverished life. I look forward to downsizing and living as she does. We would be living in townhouses and living a regular private sector working person’s life. STBX says she doesn’t want support from me but that may be a different story in the privacy of a lawyer’s office. Fair enough. I get that.
We agreed on everything. Or at least we do on paper and any discussions we have.
We went to each respective lawyer. Hers a collaborative lawyer mine a no name guy. I foolishly thought this was a simple process of getting the legal language right and getting signatures witnessed by lawyers and equalizing by RRSP transfer, selling the house, title transfers and off we go to live separate lives.

When I said to my lawyer that I wanted to give up commission work and live on my base pay he freaked and said that it would appear as if I was trying to avoid making support payments. Like what? Isn’t it normal to reduce work after the kids have grown and the mortgage is paid?

At what point would this stop? Is a separation agreement between two people or is Spousal Support a calculated formula by government? If my salary is that high and I have to make payments who decides how much. Both lawyers seem to be able wield the government sword at me. I’m doing my due diligence by paying the taxes, upkeep of the home, no affairs, and all that good stuff.

My STBX and I talk and text and occasionally visit. For sure there is some emotional stuff but we know we can't live together nor are sleeping together. We want to move on as mature adults and follow the process. Am I naive?

Neither one of us has any desire to pay these clowns any more money that we agree on for sure. I need a separation agreement to redo the mortgage and transfer titles of our two places. We are friends today but this process has the potential to go off the rail.
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Old 11-16-2014, 08:41 PM
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It doesn't sound to me like your lawyer is giving you good advice. Spousal support is not a requirement. If you and your ex both agree that neither of you will seek SS from the other, that's completely your business. If the discrepancy in your incomes is really high, it is generous of you to offer to contribute to some of her new expenses as a single-income household, but you may want to put an end date on this (you'll pay these expenses up to a maximum of $xxx per month, ending on June 30 20xx).

My ex and I have a clause in our agreement saying neither of us will seek SS from the other, and this was fine with both lawyers (though in my case our incomes were very similar).

Your ex may indeed change her mind and decide she wants to seek SS, but the onus is on her to demonstrate that she is entitled to it. Whether or not she is entitled to it will depend largely on whether her lower income is the result of choices the two of you made which benefitted your career (and your much higher income). If she was employed throughout the marriage and didn't leave the workforce to look after your kids, she probably doesn't have a very strong case.

I don't think you should feel like you have to keep working at the rate you've been going just in case your ex should decide she wants to seek SS. There's a difference between wilful underemployment to avoid paying money you ought to pay, and ratcheting back to salary-only, especially if you're heading into your 50s.

You and your ex are wise to want to minimize lawyer involvement. If you can work out an agreement between yourselves which you both consider fair, much better. It sounds like you want to do the right thing by your ex and you recognize that because of your income discrepancy adjusting to post-marriage life will be more difficult for her than for you, and there is nothing wrong with generosity and goodwill. Just don't assume that you HAVE to pay spousal support. It's not an automatic given.
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Old 11-16-2014, 10:03 PM
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If your ex agrees to no support why on god greena earth would your lawyer tell you to offer it. If i were you i would dictatr to my lawywr whay to draft in the offer and send it to ex for official response.
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Old 11-16-2014, 10:15 PM
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I was trying to make heads or tails of what happened at the last consult with my lawyer as he started running numbers through his calculator and coming up with a pretty horrifying scenario. The previous visit he said something much more hopeful. I suspect that it is my spouse who is asking for support and doing it through her lawyer.
Having read many posts here and I'm getting a gist of how to behave to minimize cost and suffering for everyone involved. Getting a separation and probably a divorce isn't something people do every day although we sure hear about it enough.
I honestly thought that this would be a simple process as our finances are simple and we do have some joint ventures such as the mortgage and houses. Normal life stuff. I asked my lawyer if he could provide a list of lawyers for my separated spouse after he warned me that there are lawyers in Ottawa who will look at our financial situation and see that we aren’t in debt and will try to take advantage of us by preying on our vulnerabilities at an emotional time such as this in order to transfer our money to them. Playing games right up to the point of going to court and then settling. That is horrifying. So I got a list of names. My STBE actually retained one. A collaborative lawyer.

So far we are at the stage where we are doing the disclosure part so we'll follow it through with the lawyers up until another draft agreement. She wants to know that her rights are protected. For sure this is wise for all. I'm not 100% sure what mine are. Frankly, I don't fully trust these guys as with all professionals some are better than others.

Just after the crash (the day of our moment of truth when she left) I had a friend give me a sample separation agreement. It was very painful but we both signed it on the kitchen table.
Her lawyer said it was not legal. I didn't retain a copy. Again, fair enough.
I had my lawyer write up a draft agreement according to the criteria of my separated spouse. He wrote an agreement. The lawyer she chose, said it was too harsh. So back it goes. That is when he asked for a partial spousal release for a period of time. I think I deserve the same. We’ll see where that goes. So it’s at the financial disclosure stage. I told my lawyer that my relationship with him has an end date.

That is why I posted here is to get feedback on the nightmare scenario he painted regarding spousal support. I understand that there are variables in regards to discussion board posts and I’ve had all kinds of thoughts and feelings running through my head.
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Old 11-16-2014, 10:36 PM
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It seems that both you and your Ex are trying to do the right thing and keep the lawyer's bills at a minimum. In your case, I would suggest mediation to help you obtain a fair and balanced agreement.

The sooner you agree, the less it will cost you in legal fees.

You are correct, they will try to drag this on for years, seeing as you are both earning, own property and have no debts (lawyers love clients like you!)
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Old 11-17-2014, 07:39 AM
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I also encourage you to pursue what Janibel has suggested.

You and your ex are good for mediation. You're smart enough to recognize that money is lost when lawyers get involved.

I'd dump your lawyer. He seems to be stirring the pot. There's no need because your ex seems to be cooperative.

Why create drama when there isn't any to begin with.
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Old 11-17-2014, 08:59 AM
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It sounds like you two should continue to communicate with each other and investigate mediation with a qualified family law lawyer. This is a far more productive and amicable route for separation couples when it can be used successfully.

Do not get sucked into the drama and politics of communicating via lawyers.

Your lawyer is correct in that is very likely your ex would have an entitlement to spousal support to supplement her income. The amount and duration of this support can vary a lot (the spousal support guidelines are not law, just guidelines). The goal of SS is sadly to keep the lower earning spouse "in the lifestyle to which they were accustomed awhile married" as much as possible.

In overly simple terms, you compute the net disposable income of both people, and then equalize them.

If she makes 50k and you make 150k, ignoring deductions for a moment, you would pay her 50k so you each have roughly 100k. This is a huge amount of money to pay.

Don't forgot other assets such as RRSPs and pensions that will have to be equalized as well.

Divorce is fairly complicated, but the emotional side of it is what makes it really hard to handle. Predatory lawyers and other experts smell blood in the water and make a killing.
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Old 11-17-2014, 11:23 AM
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Quote:
Originally Posted by FightingForFamily View Post

Your lawyer is correct in that is very likely your ex would have an entitlement to spousal support to supplement her income. The amount and duration of this support can vary a lot (the spousal support guidelines are not law, just guidelines). The goal of SS is sadly to keep the lower earning spouse "in the lifestyle to which they were accustomed awhile married" as much as possible.

In overly simple terms, you compute the net disposable income of both people, and then equalize them.

If she makes 50k and you make 150k, ignoring deductions for a moment, you would pay her 50k so you each have roughly 100k. This is a huge amount of money to pay.

Don't forgot other assets such as RRSPs and pensions that will have to be equalized as well.

.
With all due respect, I don't think the above statement in bold is quite right. The goal support is not to maintain the lifestyle of the reciever. Here is what the federal government has to say about spousal support, from http://www.justice.gc.ca/eng/fl-df/s...ux/ss-pae.html

******

Under the federal Divorce Act, spousal support is most likely to be paid when there is a big difference between the spouses' incomes after they separate. However, this is not always the case. A court may decide that the spouse with the lower income is not entitled to support. The court may reach this decision if that spouse has a lot of assets, or if the difference in income cannot be traced to anything that happened during the relationship. ...

Judges must consider a number of factors when deciding if a spouse should get support after a divorce. These factors include:

the financial means and needs of both spouses;
the length of the marriage;
the roles of each spouse during their marriage;
the effect of those roles and the breakdown of the marriage on both spouses' current financial positions;
the care of the children;
the goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time; and
any orders, agreements or arrangements already made about spousal support.

Judges must also consider whether spousal support would meet the following purposes:

to compensate the spouse with the lower income for sacrificing some power to earn income during the marriage;
to compensate the spouse with the lower income for ongoing care of children; or
to help a spouse who is in financial need if the other spouse has the ability to pay.
At the same time, the judge must consider that a spouse who receives support has an obligation to become self-supporting, where reasonable.


****************

You can be very creative in determining spousal support - it doesn't have to take the form of monthly cheques. As long as you and your ex agree on it, and then you both agree not to re-open the spousal support agreement after it's been signed off, you're good. (Technically any agreement can be re-opened if unforeseen circumstances arise which affect the fairness or validity of the agreement, but in your case - youngish, medium-term marriage, no debts, no kid expenses, both full-time employed - that's not too likely).

You can agree on no spousal support being payable if your ex is amenable, but given that the impact of divorce is going to be much greater on her than on you (you'll both have increased expenses because you'll be running a household with only one adult, but her household income is going to drop by 75% while yours will only drop 25%), I think the stand-up thing to do would be to offer her something above the strict 50/50 equalization of marital property. What that "something" is depends on what you and your ex can agree on.

Given the age of the ex (44), one way to handle this might be to offer support for some sort of retraining to enable her to increase her earning power. For example, an up-front payment now to enable her to go back to school (covering her tuition) might be more advantageous to her, in terms of boosting her earning power, than a series of smaller payments over a longer period.

Definitely, if you have good will on both sides, the more you can work out between the two of you rather than between lawyers, the better off you will both be. You don't have to use lawyers to arrive at the principles of your agreement, you can just use them as-needed to look over final drafts and make sure the i's are dotted and the t's are crossed.

If communication is getting a little difficult, mediation might be a very good option in your situation. Still cheaper and less confrontational than lawyers, but there's a third party to act as "referee" and keep you both focused on developing a solution that works for both of you.

Last edited by stripes; 11-17-2014 at 11:24 AM. Reason: getting rid of 404 error
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Old 11-17-2014, 12:00 PM
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Quote:
Originally Posted by FightingForFamily View Post
The goal of SS is sadly to keep the lower earning spouse "in the lifestyle to which they were accustomed awhile married" as much as possible.
You might consider this an oversimplification, but there's plenty of cases that do go this route.

In Bracklow vs Bracklow, "need alone" was recognized as a valid reason to be entitled to spousal support, without specifying whether the need was for a basic standard of living, or that of the married lifestyle.

In other cases, no longer having access to the husband's bank account was considered enough of an "economic disadvantage" to give automatic entitlement to spousal support.

If they have a need, and you have the means, you will usually pay. It's that simple. Often a simple disparity in income is enough for the judge to start thinking about "how much" and "how long" leading to almost automatic entitlement due to income differences.

Canada is extraordinarily (over)generous in awards of SS. Indefinitely orders with occasional reviews are the norm. With minor manipulation, an entitled spouse can bilk their former spouse out of hundreds of thousands of dollars.

The first day I met my lawyer she told me that it wasn't a question if I would be paying SS. The only question was how much and for how long. Doing anything to fight it would simply cost me more than it was worth.

I was only married for 6 years, my ex had two university degrees and worked her whole life except for 2 years she took off when our son was born. Her earning capacity was the same or higher than mine, yet she got her spousal support on an indefinite duration at 48% of the NDI.
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Old 11-17-2014, 12:36 PM
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^^^ I think this is overly pessimistic. I understand that F4F's case didn't work out well, but I know of other people who ended up with spousal support arrangements that both parties recognized as reasonable and fair. As with anything in divorce, your mileage may vary. Work out as much as you can between yourselves, don't let the lawyers goad you into increasing conflict.
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