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Spousal Support "arrears" and taxes

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  • Spousal Support "arrears" and taxes

    Some details:

    Married 15 years. Separated 7 years ago, ex filed originating application seeking spousal support, etc.

    During the past 7 years I gave him the house which had about 15k inequity, all household assets and vehicle. He would not work and wanted me to support him, was lazy up all night on computer,etc. This is why I left him. I also signed over half my pension. At the time that I did all of this, he was on welfare and I was making less that 30k annually. Because of my minimal income and giving him all the assets, he and his legal aid lawyer didn't pursue spousal support for 7 years, which brings me up where I am now.

    I managed to move up with my company since we separated 7 years ago and am making 60k annually, plus I took a part-time job working an extra 25 hours a week, which gives me a decent income of about 80k annually. Now, after 7 years of not pursuing spousal support and him finding out how much I was working, he and his legal aid lawyer has hauled me back into court suddenly wanting spousal support and claiming that I should owe arrears for the past 7 years! The equalization for me worked well because it showed that he received 19kk in assets, but his counter offer is showing that they are requesting 7 years worth of arrears which amounts to 28k and they are deducting that from the 19 k in assets he received. This of course shows me owing him $9k in arrears and that 9k is being used in their divorcemate calculations.

    First of all, they want spousal support to be paid based on my full-time and part-time income. I am insisting that this is unfair because I took on an extra job and work an extra 25 hours per week so that I can build a decent life for myself. I work like a dog and I don't understand how they expect me to work two jobs, at 65 hours per week and pay him for the second job as well and my regular 9-5 job.

    Anyone has experience with having a part-time job which your ex is including in income for spousal support purposes? Should anyone have to pay based on a part-time second job? Isn't it only fair that I pay based on what is reasonable 40 hour a week, and why should I be punished for having good work ethic and trying to build a life for myself by taking a part-time job. Why should he benefit from my extra 25 hours per week of hard work?

    Also, if it comes down to it and we move forward with allowing ex to use arrears in equalization, and I end up paying an amount higher for the next 8 years (15 yr marriage) then can I claim that 9k that was used in the equalization on my income tax and request an adjustment for the past 7 years in which those arrears were accumulated?

    If I had been paying monthly for the past 7 years, it would have been tax deductible, so why not now with those arrears? If they had actively pursued me instead of waiting for 7 years after the original application, then I would have had the benefit of declaring spousal support.

    I realize this post is long and maybe a little confusing but basically I am asking if arrears paid can be retro deducted on my income tax, by filing adjustments for the past 7 years?

  • #2
    Spousal support is only deductible when there is either a court order or a separation agreement.

    You can only deduct spousal support when actually paid, in the year paid. It is on cash basis.

    He is definitely not entitled to any SS after 7 years of separation UNLESS (and I made it in caps to emphasize) there has been a material change in his circumstances.


    • #3
      Originally posted by BeeQueen View Post
      he and his legal aid lawyer didn't pursue spousal support for 7 years
      How has he been living during this time?

      Spousal support is not child support. There is no automatic entitlement.

      I realize this post is long and maybe a little confusing but basically I am asking if arrears paid can be retro deducted on my income tax, by filing adjustments for the past 7 years?
      Wrong question.

      The question is why you are paying retro at all. I would refuse outright. 7 years after the end of a 15 year marriage, his entitlement is zero (unless you guys are older than I am assuming). Frankly, the fact that his legal aid lawyer is helping him on this crap is a nauseating waste of taxpayer dollars.


      • #4
        You sound like a guy


        • #5
          This sounds like nonsense to me, for the reasons the other posters articulate. Unless there's been a major change in his circumstances which is directly attributable to his marriage which ended seven years ago (not likely) or unless there was some really egregious miscarriage of justice at the time the divorce was done (withholding of information on your part, complete incompetence on his lawyer's part), I would think a judge would look at the fact that he's been supporting himself for seven years just fine until he got wind of your financial success as indicating that this is just a fishing expedition on his part for money. Like the posters above say, SS is not CS, you do not have an obligation to financially support an ex-spouse unless a judge says you do.

          (In the unlikely event that he does get this to court, my understanding is that retroactive awards are usually only retroactive to the date of filing; that is, except in unusual circumstances you can't seek retroactive support for the period before you began pursuing the claim for that support - i.e. you can't file in 2013 and get compensation going back to 2006).

          (One other thought - you might want to stop referring to this support he's seeking as "arrears". Arrears is when you owe someone something and you haven't paid as agreed. It hasn't been established that you owe him anything, so there's no "arrears).


          • #6
            Thanks for your reply Kids1st

            There has been no material change of circumstances for my ex. He simply didn't pursue spousal support for 7 years....probably because I wasn't making much when we first filed for divorce. He checked the box on the forms seeking spousal support 7 years ago, but never did pursue me for it until now, 7 years later. This despite him having free legal aid at his disposal. Now, 7 years later I am making a lot more than I did when we separated because I work two jobs. He now wants spousal support based on my income from two jobs. He is also now claiming that he should get arrears for the past 7 years because he actually did check that box in his originating application. Again, he never sought interim support nor did he pursue it at all.

            I would assume that "arrears" would only be considered if he was actively pursuing it for the past 7 years and now we are just coming to an end with the legal battle. That makes sense to me. But to not pursue it and then come looking for it is absurd. His legal aid lawyer is calling it "arrears" when plugging numbers into the divorcemate formula. Also, legal aid lawyer is dragging this out and costing me a fortune in legal fees and I'm tired and want this over with. I feel like giving in at this point as I can't afford this and I am so mentally stressed that I can't sleep. I can hardly believe that it is possible for someone to get free legal representation to ruin someone's lilfe. My lawyer says that he has no incentive to settle and that his lawyer is clearly dragging this out and making ridiculous offers in an effort to wear me down mentally and financially. What world am I living in where if you work hard, you are penalized for it, but if you sit around collecting welfare when you're perfectly capable of working, you get everything free and can avail of government funded legal services to help you live off someone else? I live in disbelief everyday....


            • #7
              So this individual never established an entitlement to spousal support and did not pursue it during the time you were finalizing your divorce; spent the next *seven years*, dating back to the Bush presidency, sitting on his posterior; and now that you're earning a decent income, through your own hard work, is sniffing around looking for payday? What a tool. And how little self-respect he must have.

              Unless he can show that any hardship he has suffered over the past seven years is *directly related* to his marriage, and that this was not known at the time he signed (with legal advice) all the documents bringing the marriage to an end, this sounds like a worthless case. I am most definitely not a lawyer, but it sounds like you have nothing to lose by just refusing his offers to settle. There's nothing worth negotiating here. Can you self-represent on this one so you aren't spending tons on lawyer fees to just keep sending letter back saying "no"? If it ever gets to court, you may want a lawyer then.

              (And do stop calling it "arrears" - call it a "claim for retroactive spousal support", or, if you must, "putative arrears". Try to avoid language that suggests you might think you owe him anything).


              • #8
                First of all, does he have a case at all? Did he support you during the marriage to help you further your career, even if it didn't take off until after divorce? Even if it wasn't financial support, did he do all the housework while you were in school fulltime, that sort of thing? As you pointed out, he has supported himself just fine for seven years now, and is only coming after you for your hard work that occurred after the breakup, which he had no hand in supporting.

                Then, you may want to make an offer to settle. Maybe offer him a grand to make the whole thing go away. You need to do this first to make the next options work, moneywise.

                If he accepts, well, it's over for good now, and you've saved yourself a lot of legal fees and hassle. If he refuses, and it sounds like he will, you have two options on how to proceed.

                You can self-represent. It would require a lot of research, using this forum to its full potential, and consultation with FLIC. Your case is pretty straightforward though, and you have a very good case. Then you ask for costs. Keep track of your time spent, and your filing fees.

                You can keep your lawyer, maybe try to work something out with him to minimize the fees, and ask for costs from your ex for those fees when you win in court. There is caselaw to show that even Legal Aid clients can be ordered to pay costs. Getting the money out of them is another matter however.

                However much it sticks in the craw, giving him some money now may be worth your peace of mind in getting rid of him. It's all up to you how much value you place on that, and how much emotional turmoil having to pay him would produce for you.

                Or, you could respond back, pointing him to caselaw that says that losers, even on legal aid, can have to pay costs, and point out how flimsy his case is. That may scare him off. His legal aid lawyer is probably telling him he doesn't have anything to lose, but that isn't fully true. The lawyer doesn't have to worry about not getting paid, so he'll prolong it as long as the certificate lasts.

                Personally, I wouldn't offer a cent and fight him self-represented, but I'm obstinate that way.

                The legal system sucks, but it's built by lawyers who always get paid, so what can you do?


                • #9
                  I have considered self-representing actually. It seems very overwhelming, though.

                  If I were to counter-offer, is it ok to site caselaw and revisit the facts that I feel support my counter-offer? I'd like to go back over my reasons for making my counter offer so as to keep it clear in their mind how ridiculous this is. Also, I made my original offer to settle a year ago. Not only did his lawyer not respond, but his lawyer waited a whole year before counter-offering. I've literally spent the past year not knowing what was going on. They have offered no explanation of the year long delay. Doesn't this type of thing look bad to a judge? Or is it something a judge would never know about?

                  Thank you all for your responses. Before I decide what I'm going to do I just want to take some information from this wonderful forum to get my head on straight. This process is very intimidating and I hate asking my lawyer questions as it's so damn expensive every time I do.


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