frustrated and worried

[roger7918]

Hello all,

I am a newbie - my first day here - and I don't know where to turn. I came across this website quite by accident and realized there are a number of you who have experienced hardship in family court. A good number of you, in fact!

I would appreciate any feedback or suggestions. Here is the coles notes version of my story:

My wife and I separated 6 years ago and I have been paying child and spousal support since. We had been married for 9 years and she was a stay at home mom. Our only child is 13 yrs old. My wife does have an MBA.

I earn approx. $85,000, which sounds attractive, however after paying spousal and child support($1,500 and 800 monthly respectively), I am left with very little after paying the bills.

I have no issue with child support, however spousal support is another matter! I feel this way because my ex has done the following since separation:
1) She has purchased 3 homes in 5 years, selling the first 2 and currently living in a nice home on 43 acres in the country.
2) She has taken about 15 holidays in that time.
3) Paid for our daughter to go to private school(at $1300 a month). I realize she is basically taking my spousal support payment and giving it to the school. So why does she NEED spousal support if this is the case?

In addition, we have just had our case conference(we were not in the judge's chambers for this) and the judge recommended 5 more years of spousal support!

I should mention that the whole problem is that her sister and brother in law are multi millionaires who own a business and she is basically living off them. She is doing consulting work for them(so she says) and had business income of $155,000 last year. Of course, this went into her business and she claims she has very little income.

Our sep. agmt stated that income in excess of $15k could result in a variation of spousal support, so she cuts herself a cheque for $1200 a month from her business so that she earns just under $15k.

I am not happy with my lawyer. I asked him a couple of months ago if I had a good case, and he said "it's as good as it gets". Well, $10,000 later I do not feel good about what happened at the case conference, and we have a settlement/pre-trial conference scheduled for Feb 16. I am almost positive I will switch lawyers in the New Year. The only attention to detail and engagement my lawyer has shown is doing up the bills for me. To charge me for making an appointment? That is crazy!

Anyway, I am upset, angry, worried...I just want to be the best Dad I can be(my daughter and I have always been close) under these circumstances.

What do you think are my chances, given the information I have mentioned? My ex is asking for 5 more yrs of spousal, paying for her private health insurance(if I divorce her, it means she no longer gets health coverage from my company), the right to move with our daughter anywhere in Canada(that can't be in the best interest of our daughter!), and staying as a beneficiary on my life insurance(I would rather my daughter be sole beneficiary).

Sorry for droning on so long - I haven't even given details about her blackmail attempt lately.

I am a happy, caring person, however this is sucking the life out of me. I have to go into major debt to pay legal fees, and my ex is having hers all paid for by her millionaire sister.

Any thoughts? Should I just suck it up for 5 more years? Thank you.

[billiechic]

It is an unwrtten rule that spousal is paid for half the length of the marriage. You need to focus your arguement on the fact that you have
1) paid for longer than that time
2) you ex has a much higher earning potential
3) she should have an income imputed on her since she is earning far below what she is capable. (at least on paper)

You need to be firm with your lawyer. There is no reason she needs your support to continue and you lawyer needs to put the argument together. If he/she can't do it (it sounds like it from your CC outcome) then you need to change lawyers.

Just make sure that you are clear that you intend to continue with full CS and lots of time with your daughter. Make this about her responsbility to support herself and NOTHING to do with your responsibilities to your child, becasue they should be separate.

[raven70]

spousal support

May I offer this opinion, The Justice at the SC you will be attending may
have a very differnet opinion than your CC, assuming they will be different.
I am paying 45 months SS for a relationship simular to yours, that lasted
80 months in duration. The incomes in my relationship mirrior yours exactly.
I wish you the best of luck at your SC, My justice at the SC had a totally
differnet take on the previous judges opinion on SS and he let it be known.
I hope the same for you, Raven

[roger7918]

Billie and Raven - thank you so much for your replies! Yes, when I looked at the court briefs - mine and hers - prior to the CC, I thought it was pretty overwhelming evidence that she does not need spousal support.

What really was telling was the fact that she states her income is $14,000, yet the private schooling for our daughter(for which she cuts the cheque) is even more than that. So how does she afford her mortgage and other bills.

I am hopeful that the SC will have a different result from the CC, however as I mentioned, this is all free for my ex because her sister is probably giving her a blank cheque to cover all her costs. So she can just ignore the result of the SC and go to trial.

My biggest worry is that if I go to trial, the trial judge will award costs to her and I will then have pay my legal fees and hers. That would finish me.

Again, thank you very much for your thoughts. I appreciate it!

[Mess]

Roger, a lawyer isn't a magician and the more work you can do on this yourself, the less likely you will pay another 10k for nothing. You make some good points here, these points should be, or perhaps are, clearly and logically stated in your application. You need to be firm with your lawyer about what your arguments are, how they are to be presented. If your lawyer hesitates with you or has doubts you ask for factual reasons and you weigh those reasons, and realize you are making the decisions and also you are taking responsibility for the outcome.

One of the purposes of a CC is to avoid court, to broker a compromise, which means that the suggestion of the judge is not necessarily what a trial would result in. Sometimes you have to read between the lines of what a judge says. Notice if the judge acknowledged any of your ex's points. Then look at those points closely and see if you can refute them more persuasively or if there is more documentation you can provide.

Look at your ex's financials carefully, if there are statements or amounts missing then at a CC you should be requesting the judge make an order that the financials be redone or missing amounts included.

Your case should be clearly written so that a glance at the top page indicates what you say here: that the original agreement ended support if her income exceeded 15k; she has been willfully limiting her claimed income to less than 15k to continue receiving support; her net income is absurd compared to her gross receipts; her monthly expenses vastly exceed her claimed income.

What did your original agreement say about length of support? Your child is 13. Were you and your wife common law before marrying? The support order would take into account the full length of the relationship, not just the date of marriage, due to the child. Are you paying child support? Is the amount of spousal support you pay calculated after child support is deducted from your income? Are you paying for your share of the child's expenses? The private school is debatable, but you would pay a share of expense regardless. If the full SS amount seems to be paying for school, and perhaps SS will end in a few years anyway, are you really standing to gain anything with this?

The mobility clause (move anywhere) is obscene and has no justification. It's not clear whether what you are asking regarding SS is fair or not, it's unclear what your original order was and how long your relationship was. It's not clear how much (or if) you are paying Child Support. Was the original SS order a compromise that minimized Child Support for example?

It's really hard to say if you are wasting your time and money, or if you have a case, or if there are arguments you have overlooked.

[dadtotheend]

I agree with Mess on all points, especially that reprehensible mobility clause.

I would add wrt to her stated income, just because she is electing to only take $14,400/year doesn't mean that additional income cannot be imputed to her. Demand full financial disclosure ASAP for her business activities and get to work on imputing a much larger to her.

That you have agreed previously that SS will change when income > $15K and she is strategically keeping her income a hair less than that will not look good on her.

[roger7918]

Hello Mess and Dad

Thank you for your reply, and you have a number of good points and questions.

I have had a forensic accountant take a preliminary look at her financials, however I am having trouble affording both my lawyer and the accountant. This could finish me. Conversely, because she has unlimited funds provided to her by her wealthy sister, she does not have to pay her legal fees and can play this out as long as possible. What ends up in most cases is that both parties run out of money or get stretched thin, and end up NEEDING to negotiate. That won't happen in my ex's case, as she clearly has no problem living on handouts. Anyway, the accountant has said there are some irregularities in her bookkeeping, so that is a start.

Our marriage was 8 years plus 1 year of cohab. so the duration was a total of 9 yrs. My lawyer was getting all caught up on SS equalling yrs of marriage, however my argument is that she is showing she has no NEED for SS. For instance, in the voluminous disclosure she provided, it clearly shows in her bank records that last August her funds received in her account was $25,000. Sept was $30,000, Oct was $28,000 and so on. This was all put in the court briefs for the judge to see at the CC, but I just wish I could have been in there to see what my lawyer said or did(if anything).

Our original agmt only had a 5 yr review period, no termination date of spousal support.

One question I have is that I would like a divorce ASAP. My ex has said that if I initiate a divorce, it reps a material change in circumstance bc she would lose out on my company's health insurance. So she is demanding I pay her private health ins. So, does my desire to have a divorce ASAP depend on whether my ex contests it or not? It does not seem fair that I am trapped in a corner and unable to move on with my life.

Mess, you have stated the question that is huge in my mind: Do I play this out to the tune of umpteen thousands of dollars(with incredible risk at trial, including possibly paying her costs, even with the obvious evidence that she is living quite nicely without need for SS) or just suck it up and pay for 4 or 5 more years? Not an easy one to answer. I don't feel she should be rewarded for despicable behaviour and vindictiveness.

I would like to say, as a newbie, that I am incredibly impressed by you folks. This has been very helpful and I will be checking this site out daily!

[Mess]

Usually short marriage is .5 years of SS per year of marriage; long marriage (over 10 years) can be 1 year SS per year of marriage. Please remember we are not lawyers here, but cannot believe you would under any circumstance end up paying SS for 5 more years.

We all make mistakes at our conferences; you lawyer should have come in between sessions with the judge, and he should have explained in detail what was said. Ideally you should have this written down, like I said, you can often read between the lines of the judge's remarks. You should have given your lawyer instructions in between to make clear statements to your liking. You should have had an opportunity with the judge at the end, although this is a hard time to be assertive.

Most judges at a CC will only read the top page of your brief thoroughly and then glance at the rest. I can't stress enough, the main elements of your case have to be condensed into a few paragraphs on the first page. Put in 20 pages of supporting material aftewards, but have all the main points on the first page; that is your case right there.

Personally I think her position is ridiculous and you have more than enough evidence. I think your lawyer has a point though; it will be a more onerous and time consuming and costly task to prove what her real earnings are; if you focus on the length of support then you can possibly end it more quickly and cheaply.

I'm not a lawyer, I'll say that again, and I don't want to push you into anything. If this were me, I would send her an offer indicating that I would agree to an imputation of income to her of a minimum of 40k per year and that her income exceeds the level that entitles her to any spousal. That she has no entitlement to indefinate spousal or indefinate benefits and that I would end benefits immediately. That I will pay the set-off amount of child support according to the Federal tables which will be appx $392 per month (using estimated income figures, 85k and 40k) and I will pay the proportionate share of the child's section 7 expenses. The CS levels would updated yearly and my ex would have to agree to a court order requiring full disclosure of all her business activity and receipts yearly in order to confirm income. I would then have this written into the divorce order so that it is a court order, including the disclosure requirements.

This would be my official offer to her and I would then ask at the next conference what her justification was for rejecting it, and I would seek costs at the next conference. If she seeks to argue her income amount I'd put the onus on her to provide full disclosure and proof.

[roger7918]

Thanks again Mess. I was expecting a little more out of the CC. It was all over in about 20 minutes, and I was debriefed in an interview room by my lawyer. I never got to see the judge, which I had really hoped for.

The court briefs had a preset format with all the "fluff" on the first few pages. Only by page 4(total was 9 pages) did it get to all the arguments about why she should not continue receiving SS. I find it quite incredible at the thought that a judge would not take the time to review the main arguments.

I agree with the counter offer, however I am worried that if this goes to trial and the judge decides on an outcome that is "worse" for me than my counter offer, then my ex would be awarded costs. On the flipside, I don't want to make a counter offer that is ridiculous(ie paying 4 or 5 more years of SS) in order to hopefully avoid paying costs.

The ex has shown absolutely no compromise or negotiation. Not one bit. She initially wanted this to go via mediation, however she is a chronic liar and incredibly vindictive, so I don't see mediation being a viable alternative. After all, mediation is for two parties who are willing to compromise somewhat to meet somewhere in the middle. In addition, mediation would not require her to provide financial disclosure. I really wish I had an ex who would be willing to negotiate.

Anyway, to you, Mess and all others who replied, thanks again for your thoughts.

To everyone on the site, I wish you a Merry Christmas and happy holidays...even during these times of personal turmoil some of us are experiencing.

[dadtotheend]

Stand your ground pally.

From what you say, she's the one who's being unreasonable.

[roger7918]

Thanks for the support, Dad. As stressful as the financial strain and court proceedings are, I constantly shake my head wondering how a human being can be so evil, vindictive and mean-spirited - especially given our separation was civil, mutually agreed upon, and I never strayed during our marriage. Nor was there ever any domestic abuse or yelling, just a marriage gone cold(like so many others it seems).

My family and I wonder how she can look at herself in the mirror.

[InterprovincialParents]

Roger, you did not specify, and I am curious, since it goes to the end point...

Were the bank deposits into a business account, or a personal account?

[roger7918]

Hi IPP,

The substantial deposits were put into her personal bank account.

Everything about her business income is still quite murky, which I am sure could be cleared up by spending thousands on a forensic accountant. A very preliminary look by the FA has shown some irregularities in her write offs.

This part is clear: In her disclosure, she states her business income last year was $155k and this year it is projected to be $110k. Now, this may be oversimplifying, but if I have to use my gross income in the court briefs, why then does she not have to do the same?

[KeepSmiling]

but if I have to use my gross income in the court briefs, why then does she not have to do the same?

Because as an employee - you do not incur any expenses to earn your income (most of the time). As a "business", the "business income" is generated and there are expenses incurred to get that income. What is left over is then either paid to the owner as a salary or retained in the business. The business is a separate entity from its owner.

Now ... if you can show that it is a single purpose business with your ex as its only employee and she has complete control over how the money in the business is spent, distributed etc. then you have an argument for imputing substantially more income to her than just her "salary" from the business.

IMHO - focus on trying to get a specific end date to the spousal support - I just saw a case where the combination of forensic accountant, combined with legal fees, ran up over $120,000 - and in the end - nothing was gained.

And - get the divorce! Ex can blow smoke all she wants - you are not obligated to provide medical insurance to her if it not available to you through your employer - and I don't think that this creates a material change in circumstance. She's good ... I'll giver her that.

[roger7918]

Thanks, Keepsmiling. I know..I constantly wonder about how much a trial would cost and whether it is worth it. At the same time, the emotions enter into it, because I resent the fact that my ex would be rewarded with 4 or 5 more years of SS without justification - just because she has her millionaire sister who will pay all her legal bills.

I desperately want a divorce, but my lawyer just keeps saying that because it would nullify my ex receiving the medical benefits from my company, it needs to all be worked out at court. It doesn't seem right that apparently I have to wait for who knows how long to get divorced from this woman! It's been 6 yrs..enough is enough.