Undue hardship..opinions wanted

[cormad]

My situation is as follows and I seek advice,

I have been separated for a little over three years now. I have joint custody of my two kids (11 and 14). They live week on week off with me. We currently have a court order in place and I pay $800.00 a month through FRO to my EX based on an offset calculation based on my income of approx 68K and her at minimum wage.

I am going to seek advice on undue hardship because I am struggling financially due to increased cost of living. I am also currently involved in a personal bankruptcy because of martial debt and lawyers expenses. I have about 6months (2 year process) left to finalize my bankruptcy.

My Ex owns her own home and has been living (common law) with a guy for over two years now. I would estimate his income at 45-50K. My ex also gets the full tax credit of both children as per our court order.

Any advice would be greatly appreciated...

[Mess]

You need to prepare a detailed monthly budget that completely describes every expense. Be careful not to fudge or exagerate. If you have a high expense one month, don't put in your budget that this is what you pay every month.

Items like clothing that you buy periodically, total for the year and then prorate it, that is, divide the year's total by 12.

Make sure you have receipts for everything. A good way to prove your budget is to pay for everything from one bank account by debit card as much as possible. Then attach copies of the statements with a written breakdown of the expenses. This one account can show all money coming in and going out. By paying by debit card you can show that it was $xxx.xx for groceries, $xx.xx for your phone bill, etc.

You would probably pay rent by cheque, have cancelled cheques and a copy of your lease. A copy of your monthly phone bill, hydro bill, etc. It would not be required to copy 12 months of every bill, but include a sample and then have your bank statements showing "Hydro - $xxx.xx" as a payment. Set up your bills to be paid electronically from your bank account and then the details show up on your statement.

There is no way you will get a claim of undue hardship without a complete, detailed budget with receipts to back you up. Even then, it is a difficult thing to achieve. You cannot just focus on how much money your ex has, although this will be compared.

Do your detailed budget first, it is pointless to talk to a lawyer if you don't have this already done. What the lawyer will tell you is to do your budget. Obviously you have trouble paying for a lawyer, but you can go to the Family Law Information Centre at the local courthouse.

[Berner_Faith]

Mess has it bang on...start with the detailed budget.

As Hawk pointed out, Family law does not rule Federal law... you can apply for your share of the benefits at any time and there is little she can do about it. In fact, if you are looking to claim undue hardship, part of this would be showing that even with these benefits you are sinking. Once you start getting your share of the benefits, you may find things are a little easier for you. It always shocks me that these types of things make it into agreements.

[mememe]

How did you get access to divorcemate---I thought only lawyers could purchase it???

[cormad]

What a great response to my first post...Thanks ALL !!

Mess,
Due to my bankruptcy I have monthly budget sheets that I have been submitting for the last year and a half. The only problem is I estimate my fuel and food to make by budget work out even. This is false and I am going into the hole every month..slowly I have been selling all my stuff or working for friends to get by . I have all the info and budget information from my bank account..as per recommendations all bills are paid through debit.

Hawk,
I have been miss informed, I also though that federal laws over seeded family law. I have been told the opposite several times. This year I intend on claiming my portion. I have the forms from the Family law website that compares house hold standards of living and using her boyfriends income and all other sources of income she is way ahead of me. I just want it to be fair.

I would love to settle this out of court with my ex and figure out how to make the change with FRO but past practice has not shown this not to work.I guess I just need to know I will have a strong case if I have all my documents in place. Any Idea what I would expect to reduce my payments by? you would think that equal household incomes I should be paying almost nothing and 1/2 of all expenses. I actually have no issue paying for all clothing and sports...my kids come first.

[paris]

Just to play devil's advocate...

Why wasn't the marital debt split?

Why does new guy's income come into play? If you have 50/50 custody between you and Mom... how much custody does he have?

I make 30k a year working part time. My husband has not worked for 3 years (he was taking care of his father full-time). His support for 1 child (now 18 years old) was $576 a month and we still managed to pay it without claiming bankruptcy. He could have asked to reduce his child support, but the child's mother needed the money.

My ex and I had 2 kids. We claimed the tax benefit for 1 each.

[arabian]

Earning money on the side to get by, unfortunately, is still considered income. Be prepared to declare it, hopefully before your ex find out about it and rats you out.

Be very, very careful. If your monthly expenses are higher than your actual income you would have some explaining to do.

[cormad]

Just to play devil's advocate...Really??

Why wasn't the marital debt split? It was split 50/50...she barely worked the 15 years we were together...I assume she claimed bankruptcy also

Why does new guy's income come into play? If you have 50/50 custody between you and Mom... how much custody does he have? Most comments have been informative and positive as a forum should be...you are just trying to make a point with those comments. If you are not happy over the situation you where in you should have challenged it. That is my intent to challenge it as I am struggling and $800.00 for two kids for two weeks is a lot of money for a household with two incomes plus government support.

I make 30k a year working part time. My husband has not worked for 3 years (he was taking care of his father full-time). His support for 1 child (now 18 years old) was $576 a month and we still managed to pay it without claiming bankruptcy. He could have asked to reduce his child support, but the child's mother needed the money.Good for you...without putting my entire life on this thread I would assume everyone's situation has it's own differences.

My ex and I had 2 kids. We claimed the tax benefit for 1 each.

If i received the tax credit it would have been little at my income level..it made sense that she claimed it as it would be more and benefit the kids. When we split (her affair) I did what I could to give my kids the best standard of living in both homes at that time.

[cormad]

Earning money on the side to get by, unfortunately, is still considered income. Be prepared to declare it, hopefully before your ex find out about it and rats you out.

Be very, very careful. If your monthly expenses are higher than your actual income you would have some explaining to do.

Thanks Arabian,
Yes I am more than prepared to declare it and the hours I work to support my family compared to my Ex's 24-30 hours per week. There is nothing stopping her from working 40 hrs per week, but why work when you can get by...to me it becomes a quality of life issue also. I end up working on my weekends that I do not have the kids.

[HammerDad]

Putting out a Plan B here.......(which in my opinion should be Plan A).

Why not try and impute an income to the ex equal to full time in her field? Are there absolutely no jobs out there that offer full time in her field?

Claiming undue hardship is extremely hard. You will have to justify the place you live in and why you couldn't just get a cheaper place. Same goes with your car etc. However, arguing that the ex has no reason not to be employed full time as the kids are in full time school would likely be an easier sell.

Not saying it is a slam dunk but, from my reading, the vast majority of undue hardship claims are denied. Judges don't like the notion of reducing c/s as it affects the child. But if you were to impute a higher income to her, by effect, your c/s would be reduced.

Just know that, even if your hardship claim is successful, a judge may not reduce c/s to an amount you can maintain anyway.....

I just think, given the information provided, your unlikely to be successful with a hardship claim. And if I had to go that route, it would only be after exhausting all other avenues like imputing income etc.

[Mess]

If i received the tax credit it would have been little at my income level..it made sense that she claimed it as it would be more and benefit the kids. When we split (her affair) I did what I could to give my kids the best standard of living in both homes at that time.

You are going to court and you are going to argue to a judge that you are suffering hardship, going deeper and deeper into debt, declaring bankruptcy, and you are going to contradict yourself by stating that you don't need the CCTC.

By giving the entire amount to the ex you are breaking the law and committing fraud. The CRA doesn't press charges, but they will claw back the money when they find out. From her, but she will blame you.

Meanwhile you are allowing this, and paying full CS at the same time, so she is taking in more than she is allowed.

If you want to do your best to give your kids the best standard of living in both homes, concentrate on your home and your budget. If the ex had offered you a deal to reduce CS in exchange for the undeserved CCTC that would be one thing. It is not your responsibility to bend over backwards to put money in her hands while you are going broke. That does not help your children.

[cormad]

Putting out a Plan B here.......(which in my opinion should be Plan A).

Why not try and impute an income to the ex equal to full time in her field? Are there absolutely no jobs out there that offer full time in her field?

Claiming undue hardship is extremely hard. You will have to justify the place you live in and why you couldn't just get a cheaper place. Same goes with your car etc. However, arguing that the ex has no reason not to be employed full time as the kids are in full time school would likely be an easier sell.

Not saying it is a slam dunk but, from my reading, the vast majority of undue hardship claims are denied. Judges don't like the notion of reducing c/s as it affects the child. But if you were to impute a higher income to her, by effect, your c/s would be reduced.

Just know that, even if your hardship claim is successful, a judge may not reduce c/s to an amount you can maintain anyway.....

I just think, given the information provided, your unlikely to be successful with a hardship claim. And if I had to go that route, it would only be after exhausting all other avenues like imputing income etc.

Thanks Hammerdad,
This is the advice I am looking for and what the success rate the is. I already did the plan "A" and use that in court to get the best offset I could.I am thinking I could tell my Ex my intention is to go to court and claim undue hardship. She had a rough go the first time with her lawyer and would want to avoid it and the associated expense as would I. If I can negotiate a reduction with her one on one...is it possible to change FRO without a court order?

[cormad]

You are going to court and you are going to argue to a judge that you are suffering hardship, going deeper and deeper into debt, declaring bankruptcy, and you are going to contradict yourself by stating that you don't need the CCTC.

By giving the entire amount to the ex you are breaking the law and committing fraud. The CRA doesn't press charges, but they will claw back the money when they find out. From her, but she will blame you.

Meanwhile you are allowing this, and paying full CS at the same time, so she is taking in more than she is allowed.

If you want to do your best to give your kids the best standard of living in both homes, concentrate on your home and your budget. If the ex had offered you a deal to reduce CS in exchange for the undeserved CCTC that would be one thing. It is not your responsibility to bend over backwards to put money in her hands while you are going broke. That does not help your children.

Thanks Mess for the advice,
What I need to do now is dig up my court order that states she gets to claim the entire tax credit. I will post it here for advice and see if I can go back or use as leverage. The judge knew all this when he made his decision...that is what I didn't understand and thought family law could overstep tax law? If they can truly go back after her it will cost her a lot (average was about $700.00 per month). My gain is little as i believe it 6 months based on my income.