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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #11  
Old 04-03-2011, 01:52 PM
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One of the most difficult things to deal with when it comes to parenting time and CS is the second guessing about the intent of the other parent.

It may well be financially motivated. The ex's clear comments to your wife strongly imply that. What is the current CS arrangement? Presumably the higher income is paying the lower a set off amount since you within the 60/40 rule. What kind of variance is your wife seeking?

It's great that your wife is very accomodating for extra time.

But from a distance it's hard to swallow your discounting of time spent with the father and subordinating it to your family.

It really doesn't matter what happened in the past. If Dad wants more time with his children, especially if Mom isn't a status quo stickler is that a bad thing for the children? You seem to think so vs spending time with your family.
  #12  
Old 04-03-2011, 02:33 PM
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"Do the children need an increase in support or not? "

The children do require more support now. The original order was made when they were 4 and 1, they are now 11 and 8 and their needs are different than those of a toddler obviously. My wife and her ex always shared extra curricular activities 50/50, however after the ex first saw his lawyer in August '09 he stopped paying for them. It's also worth noting that he has been paying UNDER the table amount for the past 6 years, not by much, approximately $75, however this will cover his half of the monthly swimming/gymnastics costs per month.

So, the kids financial needs have increased. He pays UNDER the table amount for the income assessed in the divorced agreement. He refuses to pay any extra curricular activities. All the while making a much higher income than the original order was based on.


"If they really really need it, why back off when the father seeks a change in access levels?"

Because court is scary! Haha ... First, this was my wife's first time seeking a variation of CS. She had no idea what it entailed. Eventually it became apparent that costs could rise above $20k. We, unfortunately, are dealing with a self-employed individual who's disclosure is incomplete and misleading. The lawyer presented the option of a forensic auditor which as you might guess doesn't come cheap. Then there was the potential for trial and it's associated costs. So, in the end she let things drop. Eventually she decided that she would self-rep and attempt to have the ex pay his appropriate amount. Why you might wonder? NBDad hit the nail on the head ...

"Sometimes it's better to do things NOW, then have to do it later. The children will (hopefully) wish to pursue post secondary education at some point, so if he's balking at this minuscule increase NOW, imagine what happens when you try and get him to contribute to a 40K bill over 4 years, times TWO."

It's the ex that has turned this into a custody issue. This all started with a simple request for an increase in CS, without lawyers, courts ...
  #13  
Old 04-03-2011, 02:42 PM
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Quote:
Originally Posted by Linear View Post
Although her ex has access 2 days/wk, my wife has always allowed him access closer to 45%. She has never been a stickler for the status quo and routinely allows the ex extra time when he arrives in town a day early or wants to keep them an extra day here or there.
So if the access is around 45% he should be paying a set off amount of CS, not full table amount, in which case he has been overpaying, no?

A person's choice of words can sometimes be very revealing as to their sense of superority. If I were your ex, I wouldn't be using the word "allowed" when referring to the parenting schedule in affidavits.
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Old 04-03-2011, 03:24 PM
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Perhaps I was too quick to specify a percentage. Looking back, if my wife allowed him an extra day every second week this would equate to 35%. In the summer months it would be an extra day each week (on average - this is all guesswork, we've never kept track of his extra days). This gives us a yearly figure of ~39%. Besides, if he did happen to *just* cross the 40% threshold, this wouldn't automatically introduce the use of a set-off calculation.

"A person's choice of words can sometimes be very revealing as to their sense of superority. If I were your ex, I wouldn't be using the word "allowed" when referring to the parenting schedule in affidavits."

The term 'allowed' is completely fitting. She is allowing him additional access to his children during HER time - time that he is not simply entitled to under their agreement. This has nothing to do with a superiority complex. It's her time with the children, not his. If the term 'allowed' isn't fitting, that would indicate the ex has the right to additional days as he sees fit. Not so ...

I'm open to keeping this vein of discussion going, but does anyone have an opinion on my original question?
  #15  
Old 04-03-2011, 04:05 PM
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Quote:
Originally Posted by Linear View Post
... This gives us a yearly figure of ~39%. Besides, if he did happen to *just* cross the 40% threshold, this wouldn't automatically introduce the use of a set-off calculation. ...
Why not?

To be clear - I think the parents income should be real (it seems you are saying he under reports his) and used every year to adjust CS. Also the offset method should be used when you are at or above the 60/40 split (and probably even when less than 60/40 to some extent to be fair).

But really if I had my kids 39% of the time, and supported them for that amount of time, and paid 100% support to their mom who actually only has them 61% of the time, I would not be very happy due to the obvious unfairness of the situation and I would probably push back to resist increases and using my actual income too!

As a side note - the set off method is unfair to the greater income earner as it assumes that it costs TWICE as much to raise the kids in two homes as compared to one, which is obviously not true, but hey the legal system ain't no good at math!

So my question is why should the set off method not be used when 40% is achieved? (and seriously - 39 is the same as 40!)

Last edited by billm; 04-03-2011 at 04:08 PM.
  #16  
Old 04-03-2011, 04:17 PM
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The time that each parent spends is not Dad's or Mom's, it's the child's. It a right of the child.

A better word to use would be "agreed", not "allowed". The child's time is not property of either parent.

Separation agreements/Court orders are like cars. The minute you drive them off the lot they depreciate. The most recent parenting schedule was appropriate at the time it was made but it's not appropriate a month, a year, five years hence. You recognized that the children's needs change over time early on in this thread. You can't have it both ways by stating the kids needs change and should be with you, but then for $$ purposes you rely on an agreement that is outdated in order to cling to your desire to retain full table CS.

How important is it to you that Mom gets full CS? Cause now you're squeezing 45% down to 39% and claiming that even at 39% the setoff is not automatic. Hmmmmm. That's just ridiculous and blatantly self-serving.

All this at a time when Dad has been paying only slightly less than table amount and only recently backed off on section 7 expenses. One wonders whether Dad even has a say in the extra cirricular activities in which the children are enrolled.

From here it appears that Mom is creating an issue over $75/mth and some section 7 expenses. What's that a couple thousand a year at most?

From what you wrote, if I was that Dad and she dragged me into court over that small an issue, I would also be asking for a change in the parenting arrangement and a change to CS to reflect shared parenting. I don't blame him one little bit. Especially when considering that you are not only subordinating the children's time with their father to time with their step-siblings, but also using language that conveys that Mom is "allowing" him to spend time with his kids?!?!? Hello, no wonder he has said some of the things you reported above.

Last edited by dadtotheend; 04-03-2011 at 04:30 PM.
  #17  
Old 04-03-2011, 04:26 PM
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"So my question is why should the set off method not be used when 40% is achieved? (and seriously - 39 is the same as 40!)"

Bill, I'm not saying it should or shouldn't be. You're right about 39% being so close to 40% so where do we draw the line? That's certainly not for me to decide. The 40% mark is simply the guideline figure, and Judges are unlikely to introduce a setoff if custody falls directly on 40% and even slightly more unless there has been a material change in circumstances. We are only asking that the ex be responsible for CS under the guidelines and as it stands, if our lawyer was correct, and our own assessment of his partial disclosure is correct, he should be paying an additional $500-$600 per month and should have been for several years. That is a significant number which essentially doubles what he pays now.
  #18  
Old 04-03-2011, 04:33 PM
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Those are two separate issues.

If you feel his income has been depressed, then challenge it. But your setoff argument is weak.
  #19  
Old 04-03-2011, 04:46 PM
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Quote:
Originally Posted by Linear View Post
... You're right about 39% being so close to 40% so where do we draw the line?
You seem to draw the line such that he pays 100% support for 61% time with mom.

Quote:
Originally Posted by Linear View Post
... That's certainly not for me to decide.
Thats simply a cop out. Of course it is something for you decide.
  #20  
Old 04-03-2011, 04:51 PM
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"All this at a time when Dad has been paying only slightly less than table amount and only recently backed off on section 7 expenses.

From here it appears that Mom is creating an issue over $75/mth and some section 7 expenses. What's that a couple thousand a year at most?"


DTTE - This is not about a $75 increase in CS. Read my previous post or better yet the full background post. We're talking about roughly $500/mth, possibly $600. And also about this being the 1st time an increase has ever been requested, and it being requested to a man who is making significantly more money than when the original order was made. Seeking a variance in CS in our case is most definitely in the best interest of this children.

"One wonders whether Dad even has a say in the extra cirricular activities in which the children are enrolled."

Why must one wonder that? Have I insinuated in any way that Mom is the only decision maker here or are you simply implying we're difficult people to get along with? There has never once been a single argument over which activities the children enroll in and the decisions therein have never been made unilaterally.

Once again, this is not a custody issue, it's about CS. He may be asking to change the custody arrangement that has been working perfectly for seven years but that's his right. He'll have his opportunity to address it with the judge and it will be settled.

And as far as CS goes, we don't determine the table amounts, and we don't dertermine percentage thresholds, but we do live by them. If his orderred access is 28% and my wife allows more, great. If the courts say setoff is not used, then setoff is not used. Should she unilaterally reduce his CS because she has allowed him some additional access that brought him near the 40% threshold? Not likely ... he's not paying the appropriate amount as it is.
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