I can't afford our agreement

[Jackalope39]

Looking for some ideas!
I was married for almost 4 years together for 7 total. After we split up we divided everything equally with her basically taking over the house which I owned prior and the family van. 410,000 total equity! I kept the stocks accounts rrsp etc.
I have 2 boys both young with my ex. We based my commission type job on 180,000 paying 2501.00 in child support and 2648.00 in alimony.however employment letters and pay stubs have me at 165,000 projection for the year! We agreed at the 180 due to the fact that commission can be up into the 200+ range! However increased employees has lowered income to the 160,000 range! As I took the things such as truck and trailer the things that we both made payments on, I'm finding it impossible to get by month to month paying alimony (6 years max) to a professional career person who refuses to go back to work till both kids are full time in school.
Since I have dug into 17,000 in line of credit as lately 4500/ month I'm clearing, thus digging a bigger hole. Getting rid of truck and trailer would create a negative number as I owe more than I'd get!
The problem is I agreed to these payment terms in our separation agreement!
Am I stuck living month to month while she takes in 5149/ month with payments around 1200/month
We share custody of the boys

[Jackalope39]

I should also point out I was offered a promotion to become the boss, but had to turn it down as salary is 130,000 but home everynight with weekends off. I work on call 24/7 and thus it's hard to plan visitation and I have no set time off but she does work with me trying to see them! The problem is I want to see them as much as possible, but can't take time off cause I'm already living cheque to cheque!

[arabian]

Is the house she took over with or without a mortgage?

[Jackalope39]

She is free and clear, no mortgage no car payments! Just insurance and bills! She banks about 3000/ month
While im in the hole every month, I have truck payments and a mortgage as I refused to rent or live in my trailer as she had hoped! I'm 37 and owned a house since I was 19. I finally became mortgage free 8 months ago. But now that it hers.
I'm not playing the poor me thing here, but both supports have me living lower than I had been, while she's living higher than she had been! And the worse thing is she has the kids day in and out!

[arabian]

your opening post stated you divided everything equally.

I'm almost afraid to ask - did you have a lawyer or did you come to this wonderful agreement on your own?

[Jackalope39]

Yes everything was equally, however at the time I had stocks that were very high and have now been cut in half! Missed my window to cash out!
We went to a mediator 4 sessions as we had hoped to remain friends, mutual separation! Then after agreeing and going to a lawyer to sign the agreement we went back and forth with issues and it started to get ugly! We both compromised and agreed quickly! However work has been much slower than anticipated, thus my new financial hardships!

[atlanticcanadian]

Variation Order

Can you try to work out a new agreement given your new financial status and then place it into a variation order?

I had agreed to that with my ex.

[Jackalope39]

Can you try to work out a new agreement given your new financial status and then place it into a variation order?

I had agreed to that with my ex.

Yup I can, she won't!!!

[atlanticcanadian]

Apply to the Court or get a lawyer to

Apply to the Court for a Variation or suspension order. It is what my ex did. When I saw his evidence I gave him his suspension.

[OrleansLawyer]

I agreed to these payment terms in our separation agreement!

Has the agreement been registered with the court? If no, you can reneg on the agreement until she files it at court. Keep paying child support, however.

Use the breathing space to bring a Motion to Change (form 15) for the agreement. Plead material change in circumstances and undue hardship. Depending on the wording of the agreement, you may do alright.

That being said, if you are still clearing 13-14k per month, her lawyer will want to know why you can't afford 5k in support, half of which is tax deductible. I suggest getting your financial ducks in a row and seeing a lawyer about whether the fight is likely to be successful or simply result in high costs against you.

[Berner_Faith]

How can he plead undue hardship with an income of over $160K?

[arabian]

my ex does it twice a year and loses.

[Rioe]

The main problem I see is that he felt forced to turn down a promotion that would see him working regular hours and offer him more time with his children because it was less money than his current commission style income brings in.

Overall principle is best interests of the children, and that is for them to have time with their dad, and reasonably similar lifestyles in each home.

Obviously the financial situation has changed since the agreement was made. It's just bad luck that he took on the riskier assets along with the debts, and they have done poorly. I'm sure they would have divided assets differently had they known a recession was about to hit. If he is unable to sustain his current payments and can't sell off assets, and can't survive until next tax time for the annual adjustments to CS, he needs to try to get an earlier variation of CS. He also needs to have SS recalculated based on the changes to their mutual incomes and expenses.

If she won't agree to acknowledge this, he needs to go to court. Both of them will provide updated financial statements, and it will become obvious to the judge that he is suffering under the support numbers because he has more debts than she does, and she is capable of supporting herself and putting the kids in daycare. His section 7 expenses for that would be much less than the SS he mentioned.

He may also want to see if that promotion is still available to him, and go for it. It doesn't sound like he gets much time with the children now as he is too busy working. Maybe he could even go for 50-50 custody, which would also give his ex more time to work and support herself.

I doubt undue hardship would go over though. He has options such as downsizing to a smaller home or renting before he hits that point. I thought that was just a way to bring an ex's spouse's income into play though? He doesn't mention that his ex is with someone new.

[arabian]

In my experience judges do not like to change orders. Change of circumstances have to be quite drastic. You can't say "my income is going to decrease" because that is only a projection - not fact.

The decrease in the value of investments is unfortunate but probably would not have any bearing on the court decision. Whether there was economic factors or money blown in a casino... choices were made. Not the ex's concern.

[OrleansLawyer]

How can he plead undue hardship with an income of over $160K?

It would depend on his debts and other obligations. A hard hill to climb but not impossible if that fit his situation.

I doubt undue hardship would go over though. He has options such as downsizing to a smaller home or renting before he hits that point.

A more likely result than reducing his support.

It should be mentioned that the courts do not protect people from making improvident bargains. He made his choice regarding support knowing his income could go up or down; he was banking on up. He also bet his stocks would stay up as well. Is the result unfortunate for him? Certainly. But that was the risk he knowingly walked into; why should his ex suffer for his risk?