spousal support if x is in a new common law relationship?

[fairshake]

re: x is in a new common law relationship for almost 1 year.

Hi, Hoping to have some help/confirmation as I'm working toward resolving a separation agreement that seems to move one step forward and two steps backward and has been dragging on for just over a year... I know you have to be in a common law relationship for 3 years before support entitlement but not sure how this effects my separation. After my separation my x moved out of the house and moved in with her new partner (for almost 1 year now). X was working and making great money before we separated and now magically she can't find work...

x's lawyer demanding more spousal support after agreeing to a lump sum amount she determined. I think we have settle on a child support amount that is reasonable ( well not really since she should be working and making a salary comparable to mine! ) and I would like to know if I should start paying child support...

Also how does her living with her new partner full time and my children 1/2 the time (shared custody) work into me paying spousal (hopefully working on a lump sum payment instead) and child support to my x...

The x also claims that she is broke, unable to find work... so would it make sense that her new partner is supporting her but claims that her parents are doing this? She could very well be working under the table as she is more than capable of doing this.

Now that she is demanding more I don't feel that she deserves a nickle when she is more than capable of working and making a very reasonable salary.

Thanks for any help...

[Exquizique]

Child support is straightforward. Based on your custody situation, determine whether you are paying full table or offset child support (or if she's making more than you then she pays you offset), calculate the amount based on the CS guidelines, and start paying.

Based on the limited information provided? Assuming that your ex has always worked throughout the relationship with you and makes a comparable salary to you, then she is not entitled to ANY spousal support from YOU. If circumstances have arisen that she now cannot work/cannot find work, it is something that occured POST-SEPARATION and not as a result of your relationship. Her common-law partner of one year should be supporting her. Or her parents. Or whomever. But not you.

Don't agree to any spousal support amount, lump sum or otherwise. Unless there are other major issues in dispute that would warrant you dangling SOME spousal support as a carrot and incentive to settle. But I don't know all the details of your situation.

[Canadaguy]

she must prove she is entitled and you must prove she is not entitled. Her debt level, assets, salary, job status, new partner, etc, etc are all factors.

[Rioe]

Hi, Hoping to have some help/confirmation as I'm working toward resolving a separation agreement that seems to move one step forward and two steps backward and has been dragging on for just over a year... I know you have to be in a common law relationship for 3 years before support entitlement but not sure how this effects my separation. After my separation my x moved out of the house and moved in with her new partner (for almost 1 year now). X was working and making great money before we separated and now magically she can't find work...

Your ex had a good job and income before separating from you. She deserves zero spousal support. You are not responsible for her choices and situations that arose post-separation. You should only pay spousal support if her lack of work was due to the marriage. The fact that she moved in with someone else is not relevant.

x's lawyer demanding more spousal support after agreeing to a lump sum amount she determined. I think we have settle on a child support amount that is reasonable ( well not really since she should be working and making a salary comparable to mine! ) and I would like to know if I should start paying child support...

Ex's lawyers make all kinds of crazy demands, hoping you will cave in.

As for child support, yes, of course it should be paid, as soon as the child is living in two separate homes. If you do not think the amount is reasonable though, only pay the amount you DO consider reasonable until an agreement is reached or you get a court order that says otherwise.

Also how does her living with her new partner full time and my children 1/2 the time (shared custody) work into me paying spousal (hopefully working on a lump sum payment instead) and child support to my x...

Her new partner is irrelevant. And remember, no spousal! What IS relevant is that you each have the children half the time. This is an offset situation. Calculate the amount you should pay based on your actual income. Calculate the amount she would pay if she still had her prevous income (this is called imputing an income to her that she should reasonably be expected to make). Find out what the difference is, and the higher pays the lower that amount. If that's you, that's the amount you should pay until otherwise court ordered. If it's her, you probably can't demand it from her, but you should not pay her anything additional. And you should certainly argue that she should be expected to work to support her children.

The x also claims that she is broke, unable to find work... so would it make sense that her new partner is supporting her but claims that her parents are doing this? She could very well be working under the table as she is more than capable of doing this.

Now that she is demanding more I don't feel that she deserves a nickle when she is more than capable of working and making a very reasonable salary.

No one can claim a zero income. If she has other people supporting her such as a new partner or parents, then they can help her pay any CS she may owe to you based on her imputed income. And no one can claim to be unable to find work. There are always minimum wage jobs. However, if she legitimately can't find work in her previous field, that may be a valid point of negotiation. You could offer to only impute a full-time minimum wage income to her instead of her previous income, and calculate offset CS based on that.

What it looks like your ex is doing is being willfully underemployed, to try to get more money out of you. That's a good search term to use to find more information, along with imputing income.

What are the circumstances of her not working after the separation?

[arabian]

um, I believe you are considered common law after 3 months.... you had better check up on SS entitlement - some people get it after living together for 1 yr.

Don't think someone else's living arrangement is really anything for you to be concerned over. My ex set himself up for SS within months of our separation. I think it's hilarious.

[OrleansLawyer]

I believe you are considered common law after 3 months

In Ontario, spousal support may be claimed if,
1 - you are married;
2 - you have cohabited for a continuous period of three years; or
3 - you have cohabited in a relationship of some permanence, and are the natural or adoptive parents of a child.

[dad2bandm]

Exquizique makes valid points.

The "child support" is a no-brainer, in that yes, you need to start paying it.

Spousal support - there has to be a "need" for it, and you leave your "ex" to provide proof or leave the onus on her, on why it's needed. I would question why there is a "need" for it.

Best to get a lawyer's advice here. And then you can also discuss with a lawyer, your rights since your child is involved here as well, and a custody and access arrangement.

[NBDad]

Spousal support is only after entitlement has been proven. The onus is on her to do that. She has to show her career suffered as a result of the relationship. (ie. she left a career because yours required a move. She stopped working while the child was small, etc).

Very simply, you ask her and her lawyer to provide proof of entitlement to spousal.

How much do you make? How much (did) she make previously? What is min. wage in your province?

IF she can prove entitlement, THEN you would use the SSAG to figure out HOW MUCH and FOR HOW LONG. Her new relationship doesn't enter into things UNLESS she either claims undue hardship OR does not return to work and let's the new partner support her.

(IMPUTING AN INCOME is done either on what she is proven capable of making, based on her HOUSEHOLD income (ie. with the new partner) OR full time hours at minimum wage. Section 19(1) of the federal child support guidelines outlines the requirements here...highly recommend you read up on them)

CS should be offset as has been mentioned. If she was making X previously and quit/was fired post separation, that is not your issue. She should have an income imputed, based on one of the three scenarios I indicated above. (worse case, there is always a McJob out there).

You should be paying offset CS immediately. (I would personally recommend you BANK the difference between OFFSET and FULL TABLE, absolute worst case scenario happens and you get dinged for arrears, you simply cut a check).

Make sure you pay CS via a documented method. (ie. email money transfer and use the memo field liberally - Offset CS for dd/mm/yyyy)

[fairshake]

Thanks for the all replies!

Its very frustrating trying to complete a SA and negotiations come back demanding for more money for most of the items... X is the one complaining that I'm taking to long to settle... Its hard to be motivated when I'm being beaten down on every point. From the replies I'm reading I'm being far to generous.

Everyone is basically confirming my thoughts.

1) She made much more than me for a few years previous to separation. Prior to that perhaps less but definitely capable of making the same or more. Does SAAG look back at income of all married years or only the last ones to calculate who owes who? If it looks at all married years I'm sure it would be close to a wash. True figures for her would be hard to obtain for 4 of the 15 since I don't have bank records for x when was a self employed contractor.

2) Explaining to x and her lawyer that she owes me CS and SS based on her last employed income would probably add fuel to the fire which I don't want to do. We've agreed to a monthly CS amount that I'd pay but now I'm second guessing myself based on what everyone seems to be saying...

I guess I'm a sucker but finally having shared custody after x manipulating it away from me for a period of time after separation has me weary of rocking the boat and x doing it again... and again... even though shared custody is one of the points she has agreed to on without prejudice basis I don't trust her.

No proof of not being able to find employment has been given. It was even agreed that I would aid in finding her employment... As far as I'm concerned she is willfully unemployed to extort money from me in the form of a lump sum payment for SS and CS monthly payments.

I'm thinking:

IS biting the bullet on the monthly agreed amount for CS the way to proceed (basically 1/2 my tabled amount) but stipulate a time period for her to find a job after the SA is completed (eg. 6mo.) so offset tables amounts can then be used based on her new income. If no job after 6mo reduce the CS amount to smaller more reasonable amount.

From what everyone is telling me here I shouldn't be offering anything... I know if this end up in court its a crap shoot. I could end up paying full CS until she finds a job which she may never do... (working under the table) I don't think there is a risk of paying SS. If I start paying CS and she has no job what are the odds that the judge would change the amount since a precedence has been set and the amount is or close to an amount to she agreed on a without prejudice basis?

thanks again for your help!