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Old 04-13-2010, 07:48 PM
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Default Spousal Support Entitlement

My Ex husband is trying to get spousal support and I'm being told that he doesn't have to prove entitlement because it's an automatic calculation using supportmate software with our financial information entered. So many related issues to my question, however I'd like to start by understanding if it's true that you don't have to prove entitlement. I make a little more money than he does but I am supporting our 3 kids on my own. He is not paying any child support because his lawyer told him he doesn't have to until the issue of spousal support is dealt with. I've read the Divorce Act, researched case law, read the SSAG and anything I can get my hands on. I believe he must prove entitlement first and this can only be dealt with in a Trial. HELP!!
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Old 04-13-2010, 08:05 PM
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Originally Posted by Stressed by Ex View Post
My Ex husband is trying to get spousal support and I'm being told that he doesn't have to prove entitlement because it's an automatic calculation using supportmate software with our financial information entered. So many related issues to my question, however I'd like to start by understanding if it's true that you don't have to prove entitlement. I make a little more money than he does but I am supporting our 3 kids on my own. He is not paying any child support because his lawyer told him he doesn't have to until the issue of spousal support is dealt with. I've read the Divorce Act, researched case law, read the SSAG and anything I can get my hands on. I believe he must prove entitlement first and this can only be dealt with in a Trial. HELP!!
If it was me and I was supporting three kids without any assistance from the other parent -

I would bring an Application for Custody and Child support and cross claim for for spousals support and costs. A motion could also be scheduled for interim disposition.

Entitlement to Spousal Support - Its not automatic and must be demonstrated. Good rule of thumb is Needs verses Means. Appears like their lawyer is somewhat of a bully - Expect the curves.
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Old 04-13-2010, 08:18 PM
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I already have Custody so this is a non-issue. I didn't know I could cross claim for spousal support. I'm being told I make more money than he does so he has automatic entitlement.

As for the Needs verses Means - I have 3 years of sworn Financial statements showing I'm short month over month for the last 3 years. I have paid everything including S7 expenses for 3 years.

I have brought a motion for child support and it was reduced by the Judge based on his claim for spousal support. Nobody can believe this happened, including my lawyer. He was paying the child support for the first 9 months and then stopped when he hired this lawyer because there was no order for child support. So I finally get one and it's reduced because of his claim to spousal support, which I believe is a trial issue.

He is in contempt of the child support order and I have filed with FRO, however he continues to hold firm in his position that both are dealt with in conjunction. That's not what the law states. And because the Judge reduced the child support (without his filing any financial statements I might add), he continues to insist I don't know what I'm talking about.

And yes his lawyer is a bully. I know first hand because I represented myself for a year and dealt with him directly.
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Old 04-13-2010, 08:57 PM
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Child support and Spousal support are mostly independant of each other. "Mostly" in the sense that Spousal counts as income and will affect the Child Support calculations. It's entirely possible that one spouse will pay Child Support and the other pay Spousal, but these are separate calculations.

Child Support is an automatic entitlement, spousal support is not. Yes, entitlement must be proven, but it isn't just a question of need or income levels. It can be compensatory if he spent years supporting your career at the expense of his own, and then even though you have comparable incomes there could be a claim. But you have to do more than just claim it, you have to show it factually and there are counter arguments from your side and the judge has to decide. It is not automatic.

If you have an order for Child Support, he has to pay. He has to make his Spousal claim separately. The FRO will take time to get in motion, but they will collect and won't care about his Spousal bullshit.

The fact that you make more money doesn't automaticly entitle him, very roughly you would have to make about 2x his income before there is entitlement base just on income disparity. He would be brought up to 45% of your income level.

Read through the Spousal Support Advisory Guidelines. They are not mandatory, but they are being used, and are based on existing judgements. Judge for yourself if he has a case, and quote a few lines from the guidelines in your next letter to his lawyer and call him on his bullshit.
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Old 04-13-2010, 09:28 PM
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Thanks so much for your response. Everything you explained is exactly as I understand ithings through my own research, which includes reading the SSAG.

He did not spend years supporting my career at the expense of his own, although this is what he is trying to prove along with bullshit that he was our children's primary caregiver. He worked afternoons for the majority of our marriage and the kids were in daycare all day until they started school full-time. I was a single parent for years before the marriage ended.

Please note that HE CHOSE to work afternoons, because he had his days free to go to the gym, and do his own thing and not have to tend to 3 young children in the evening. It wasn't forced on him, he chose these work shifts.

I don't make 2x his income. In fact I have passed up many promotions and opportunities because I put our marriage, children and family first. We both have always worked full-time and our 3 children attended daycare from the time I went back to work from 2 6-month maternity leaves (had twins the second time) and we even collected Daycare Fee assistance from Social Services because we couldn't afford daycare for 3 children. We received this assistance until they stopped attending daycare when they turned 12.

Your response has helped more than you know. So the only thing that still baffles me is why the child support was reduced last September because of is claim to spousal support from me. It doesn't make any sense to me...I believe the judge made a huge error. What do you think?
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Old 04-13-2010, 10:19 PM
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A judge at a conference won't necessarily apply the law the same way they would at trial. At our conference the judge made an interim order for less than table child support. Our judge's intent, as I understand it, was to promote a mediated or negotiated solution instead of a courtroom battle. So the interim order may be a compromise to encourage the parties to just settle and be done with it.

Plus judge's aren't perfect, they have minimal time to read over a few pages of notes in applications and responses, they don't get full testimony at a conference or a motion hearing. That's why the orders are meant to be interim. It is a quick bandaid solution.

Compare what a court fight will cost you, vs making an offer for a slightly reduced child support amount, in theory call it offset by some spousal. Is it worth the fight? At the same time, I can understand that walking away and feeling that you got taken and gave in, that can be an ongoing stress with it's own costs. You have to decide what is best for you.
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Old 04-13-2010, 10:19 PM
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So the only thing that still baffles me is why the child support was reduced last September because of is claim to spousal support from me. It doesn't make any sense to me...I believe the judge made a huge error. What do you think?
I paid my ex $700/mth SS which was offset by $300 CS to me, so I paid her $700/mth. They are independant but the dollars paid can be offset.

The CS was reduced because you haven't resolved SS and the court isn't sure yet about entitlement to SS. The court may even be sending a message that there appears to be a valid SS claim so they offset on an interim basis. Yes, entitlement has to be established at trial, but only ulimately. You will almost certainly settle before that.

You need to be pushing towards trial, even though your aren't going there. Move and move again towards it. The closer you get the more likely you will finally settle, including SS and CS.

Last edited by dadtotheend; 04-13-2010 at 10:25 PM.
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Old 04-13-2010, 10:53 PM
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Thanks to you both!!

Mess - Yes I believe that was in fact the intention. Trying to promote settlement. And in fact we were given strong recommendation to mediate, however my Ex refuses to settle or mediate. He interpreted the Judge's decision as a win for him. He is intent on moving forward with his "right to SS" and push a trial which he knows I can't afford. Hoping I'll buckle.

Dadtotheend - my Ex pays me $0 CS, and says he doesn't have to. I have made numerous offers to settle and I am pushing towards trial, knowing I can't afford one because I know a Trial judge has to read the material and hear witnesses. I wish I had your confidence that this will settle.

BOTTOM LINE - I have already accepted a reduced child support, in fact said $0 was fine just to end the nightmare. But he continues to demand his full "entitlement to SS" based on bogus numbers his lawyer runs through Supportmate. My lawyer has run the numbers as well and it clearly demonstrates that he would still have to pay CS even with factoring in the SS reduction.
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Old 04-13-2010, 11:02 PM
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Search "guarandamnteed" in this forum.

Only 2% of cases go to trial. You're not one of them, guarandamnteed.

Ask anyone here to tell you about their trial experiences. There isn't anyone.

We went to a second trial management conference. Anyone got some personal experiences to share about exit pre trial conferences, or trials?

Last edited by dadtotheend; 04-13-2010 at 11:06 PM.
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Old 04-14-2010, 10:37 AM
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The fact that you make more money doesn't automaticly entitle him, very roughly you would have to make about 2x his income before there is entitlement base just on income disparity. He would be brought up to 45% of your income level.
If one spouse makes 2.5-3 times the other spouse's income, is it automatic?
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