Announcement

Collapse
No announcement yet.

Equalization Payment - Spousal Support

Collapse
This topic is closed.
X
X
 
  • Filter
  • Time
  • Show
Clear All
new posts

  • Equalization Payment - Spousal Support

    I am considering making a new offer to settle my case before our case conference on Nov 20th.

    As part of the offer I will be asking to keep the house. I am willing to assume ALL debt including her vehicle loan. I will not touch her pension and she can keep her vehicle. According to my calculations this significantly reduces her equalization payment to me. Now my main question is if I offer to waive her equalization payment as a one time spousal support payment. Would this be considered an admission that she is entitled to spousal support, which I don't believe she is, or just a gesture of good-will. Lets say she rejects this offer and our case in court proceeds can she say "he offered me spousal support so obviously I am entitled to it"

    Thanks

  • #2
    Make offers without prejudice.

    Comment


    • #3
      Originally posted by OrleansLawyer View Post
      Make offers without prejudice.
      How would making it without prejudice affect determination of costs if at all?

      Thanks

      Comment


      • #4
        Making an offer that is as good, or better, than what would result from the court appearance indicates that court was unnecessary, the other party was just obstinate, and should pay your costs. By itself, "without prejudice" doesn't make that more or less likely.

        You want to make it "without prejudice" so that it cannot be used as an admission that you owe the other party anything.

        For example I may sacrifice an additional $5000 in an offer in order to save $10000 in further legal costs. That doesn't mean I actually agree I owe that amount.

        Your original question was about your liability for spousal support, not your liability for costs.

        Comment


        • #5
          Originally posted by Mess View Post
          Making an offer that is as good, or better, than what would result from the court appearance indicates that court was unnecessary, the other party was just obstinate, and should pay your costs. By itself, "without prejudice" doesn't make that more or less likely.

          You want to make it "without prejudice" so that it cannot be used as an admission that you owe the other party anything.

          For example I may sacrifice an additional $5000 in an offer in order to save $10000 in further legal costs. That doesn't mean I actually agree I owe that amount.

          Your original question was about your liability for spousal support, not your liability for costs.
          Thanks that's basically exactly what I'm doing. I'm willing to give up X in equalization (lets call it a buyout of spousal support) to save y in legal fees.

          I just like to make sure my view of the whole picture is not lost. I'm making an offer to settle not to ensure I get my costs, but I also don't want to do something stupid by making an offer that could jeopardize either.

          The way you explained it makes perfect sense to me.

          Thanks

          Comment


          • #6
            Equalization and SS are two different things and one can't replace the other directly. However you can agree to waive equalization if she will sign a waiver of spousal support as a good negotiation tactic.

            This waiver, along with ILA, is the best protection you can get against a SS claim. Only a very serious change in material circumstances would have a chance to re-open it.

            Comment


            • #7
              Originally posted by FightingForFamily View Post
              Equalization and SS are two different things and one can't replace the other directly. However you can agree to waive equalization if she will sign a waiver of spousal support as a good negotiation tactic.

              This waiver, along with ILA, is the best protection you can get against a SS claim. Only a very serious change in material circumstances would have a chance to re-open it.
              That's basically what I'm going to say. The equalization payment of $XXXX.XX would be waived provided the standard release of spousal support be executed.

              Comment


              • #8
                just a note.... my lawyer puts this statement on all his correspondence, not my ex and my lawyer's response was, because he , the other lawyer has not been taken to task which I took as having something you bring up being used against you in some fashion as time goes on.

                As far as the equalization and SS - pleas do a search here and you will pprobabally have a different view on the subject and how many people have gotten caught on the premice of what you propose. By the way a change in circumstance could be the loss of a good paying job, getting ill - and nothing can stop the other party from taking you back to court countless times - another search you can make here.

                What lesson I have taken from this is to not assume anything and logic appears to not have alot to do with divorce!!! But equalization is two completely different issues and one, equalization can be considdered in the determination of SS (high equalization leaves the recieving party in a better position to reach the normal standard of living and two, in the end SS can be paid in a lump sum, but equalization is not SS.

                Comment


                • #9
                  In my circumstance, I fought for and was awarded 50-50 week shared custody of the minor children. I earned more than my ex. Because of the 50-50 shared custody, I did not have to pay child support. However, I did have to make an equalization payment and was given the option to do it in the form of child or spousal support. Even though spousal support would offer me some tax advantage I chose to make equalization payment in the form of child support. My theory is that child support has a finite end whereas opening the door for spousal support could open up a whole different can of worms.

                  Comment


                  • #10
                    re the question abut setting off equalization against spousal support. this is done often.

                    Offers to settle can not be referred to in motions or at trial but obviously can at case conferences.

                    A claim can be set off against a claim without it admitting that the claim is valid.

                    Re the wife saying well he agrees I am entitled to spousal support because he offered to set off my claim for spousal support against his claim for equalization --- I can not see a judge being influenced by this one way or another. If the fear is that it will embolden her, I think this is unlikely.

                    On the other hand a refusal to under any circumstances consider spousal support often inflames conflict due to old law that a woman who is not chaste is not entitled to spousal support.

                    However, I would be curious what the facts are that makes you think that she is not ":entitled"" to spousal support.

                    I am not saying that she will get spousal support.
                    But I am referring to the fact that there is a theoretical step of determining entitlement before considering quantum --- I.e. looking at what the parties make -- No one is really very clear on what is involved in this entitlement step now -- as there is no such thing as disentitlement (other than a contractual waiver)

                    Comment


                    • #11
                      Originally posted by Old Lawyer View Post
                      re the question abut setting off equalization against spousal support. this is done often.

                      Offers to settle can not be referred to in motions or at trial but obviously can at case conferences.

                      A claim can be set off against a claim without it admitting that the claim is valid.

                      Re the wife saying well he agrees I am entitled to spousal support because he offered to set off my claim for spousal support against his claim for equalization --- I can not see a judge being influenced by this one way or another. If the fear is that it will embolden her, I think this is unlikely.

                      On the other hand a refusal to under any circumstances consider spousal support often inflames conflict due to old law that a woman who is not chaste is not entitled to spousal support.

                      However, I would be curious what the facts are that makes you think that she is not ":entitled"" to spousal support.

                      I am not saying that she will get spousal support.
                      But I am referring to the fact that there is a theoretical step of determining entitlement before considering quantum --- I.e. looking at what the parties make -- No one is really very clear on what is involved in this entitlement step now -- as there is no such thing as disentitlement (other than a contractual waiver)
                      I guess I should not come out and say she is not entitled. It would be my belief that she would have a hard time proving a requirement for spousal support.

                      Under a shared access agreement (which is what my proposal is) I would be paying off-set child support. After taking the off-set amount into consideration our NDI would be split 54% - 46%.

                      This is well within the Spousal Support "guidelines". I also understand that they are just "guidelines". We both are well educated, both make good money. We both have worked our entire marriage. She took two years off (one for each kid) in maternity/parental leave. She did not lose out on any career advancement because of those leaves as she is unionized and received all of her raises and seniority. I also took some parental leave with our second child.

                      Based on that information she would not in my opinion be put at an economic disadvantage. We are both going to have the same economic hardship based on the fact that our incomes are now basically split in half. We should also both be able to be self-sufficient rather quickly.

                      Again this is all based on a 50/50 shared access agreement. These numbers would obviously be different with a alternate access agreement.

                      Comment


                      • #12
                        I agree that a 54% 46% ndi split does not give rise to much of a claim for spousal support. Also the fact that you took parental leave is also a big factor. You must actually be in Ottawa. I am told that this i the type of thing one sees often in Ottawa.

                        In my area I rarely see this. The n.d.i is usually something like 75% 25% and husband will say she did not suffer due to raising children when the wife quit three good jobs to follow husband or alternatively earned more than the husband when they married and still earn that amount and the husband has risen through the ranks.

                        The case about 15 years ago which caused the light to go on and me to get compensatory support was as follows. The husband made about 150,000 and the wife made 40,000. kids grown. At that time in a situation like this we wold say no need. 40,000 is enough to live on. I was acting for her and told her I did not think she would get spousal support. She was upset

                        But as time went on I found out the facts and when they met she was the bank manager and he was a teller. When they got together she quit as it would not be acceptable for them to be going out. They got married she stayed home with the kids he stayed with the bank and was transferred to head office, she followed him. After the kids went to university she went back to work and applied to every bank and none were hiring.

                        She got a job in administration with a university.

                        When we had our first four way meeting it was clear she outclassed him. Smarter way more articulate even better good looking. If they had never got together she would have arisen through the bank as well, I figured.

                        The concept of compensatory support clicked for me.

                        But this is not your situation. You make close to the same and you both took time off with children.

                        Comment


                        • #13
                          Originally posted by Old Lawyer View Post
                          I agree that a 54% 46% ndi split does not give rise to much of a claim for spousal support. Also the fact that you took parental leave is also a big factor. You must actually be in Ottawa. I am told that this i the type of thing one sees often in Ottawa.

                          In my area I rarely see this. The n.d.i is usually something like 75% 25% and husband will say she did not suffer due to raising children when the wife quit three good jobs to follow husband or alternatively earned more than the husband when they married and still earn that amount and the husband has risen through the ranks.

                          The case about 15 years ago which caused the light to go on and me to get compensatory support was as follows. The husband made about 150,000 and the wife made 40,000. kids grown. At that time in a situation like this we wold say no need. 40,000 is enough to live on. I was acting for her and told her I did not think she would get spousal support. She was upset

                          But as time went on I found out the facts and when they met she was the bank manager and he was a teller. When they got together she quit as it would not be acceptable for them to be going out. They got married she stayed home with the kids he stayed with the bank and was transferred to head office, she followed him. After the kids went to university she went back to work and applied to every bank and none were hiring.

                          She got a job in administration with a university.

                          When we had our first four way meeting it was clear she outclassed him. Smarter way more articulate even better good looking. If they had never got together she would have arisen through the bank as well, I figured.

                          The concept of compensatory support clicked for me.

                          But this is not your situation. You make close to the same and you both took time off with children.
                          I am actually in the GTA. The only thing I could possibly see and I don't know if it even matters is that she is almost near the top of her pay scale. So her potential for future growth is limited and mine is not. Again though this has nothing to do with the marriage but her career choice.

                          Also her request is for full custody which would be full table amount for child support. She is then also asking the judge to order $750.00 / month in spousal support

                          If I paid those numbers I would then be at 26.3% of NDI and she would be at 73.7% and would also put my net income at about minimum wage.

                          I totally get that asking and getting are two different things as mentioned many time by Tayken and others.

                          Would a pension also be considered in a spousal support calculation? She has been in her pension for 7 years. I have been in my pension for 10 years. Hers is a contributory pension mine is not. Her pension accumulated over those 7 years is 3 times the value of mine over 10 years. I understand this is all part of equalization but would it also not be considered towards her ability to care for herself in the future.

                          So since I don't have a contributory pension and she does should I not be able to contribute approx the same to an rrsp and then calculate my NDI. Her NDI is calculated after her pension deduction and mine would be calculated before any RRSP contributions. Is that a correct statement? I guess that really makes it complicated and maybe I'm totally reaching here.

                          Thanks

                          Comment


                          • #14
                            The fact that she is near top of her profession is not going to play apart. The courts always look at the parties income when they calculate it. I have not seen the non contributory pension taken into account.

                            But I really do not see you being at serious risk for spousal support in the range she is asking. I think you are okay

                            Comment

                            Our Divorce Forums
                            Forums dedicated to helping people all across Canada get through the separation and divorce process, with discussions about legal issues, parenting issues, financial issues and more.
                            Working...
                            X