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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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Old 02-15-2011, 12:29 AM
donnel8 donnel8 is offline
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Default Separation Agreement Question

My ex and I had our separation agreement drawn up a few months ago but have run into a bit of an issue. We had a nanny that was to work out her remaining months of her contract but has recently given her notice. Our agreement states that we will mutually agree to the new terms, cost and division of care. We want to enroll our son into daycare now but the difficulty is with the division of payment for his care. Unfortunatelty this was not spelled out in the agreement and my ex is refusing to use the proportionate split for payments. She makes roughly 25000 more then me and the split would be 55/45. I am really strapped for cash and cannot afford to pay out the 50/50 cost. Our Agmt states that we will try to come to a mutual agreement and if that fails consult mediation.

What will mediation do for us?
Is she obligated to follow the mediators suggestions if they suggest proportionate?
How far should I push the issue?

My income will remain the same going forward and hers seems to grow every year as she moves up the ladder.

Any suggestions?
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Old 02-15-2011, 08:23 AM
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NBDad NBDad is offline
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A 5% difference in proportional split is going to break you? You have bigger issues than daycare if that's true.

Mediation can go either way, the difference is 5%, which is nothing. By the absolute letter of the de facto standard the law uses, it should be a proportional split, but there are no guarantees of such.

If the daycare is THAT expensive, then find altenate arrangements? Was the nanny more or less of a cost than daycare?

Are you currently getting CCTB? How often do you have the child(ren). If your ex makes more than you do, and you have them more than 40%, then 1. YOU should be getting CS, and 2. You should be collecting CCTB/UCCB 6 months a year.

If you are getting UCCB, does the split of daycare costs calculated occur before or after that is applied?
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Old 02-15-2011, 08:41 AM
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Unsubsidized registered daycare with teachers with university degrees in ECE cost us just over $1000 at peak, when our child was an infant, and this went down with age to about $800 the last year before kindergarten. The difference a 55/45 split would make would be $50 per month at most. The cost of a few sessions of mediation would be worth 6 months of the daycare difference.

I could see that in the long run you want to have this settled and written in; he will need daycare and summer camp even when he is in school if you both work full time. But if you can't afford that $50 then you can't afford mediation either.

If I were you I would make sure that the separation agreement was registered with the courts as an order, pay daycare every other month for this year, and then moving forward insist that other section costs (probably summer camp) be split proportionately with some extra from her to make up the difference. If/when she refuses, go to court and get a motion order for her to pay the section 7 expenses that are owed, probably at the same time you get a motion to vary the support paid when her income goes up. You could do this on your own without representation.

It sucks that you may have to wait until she owes you some money for special expenses to get this into an order, but otherwise you are opening up the separation agreement to reword the nanny clause and to me it seems like the lower cost option to wait a year and then get an order for her to pay expenses owed. Make sure to keep receipts of course.
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Old 02-15-2011, 11:54 AM
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Does your agreement state that you will split daycare costs 50/50? I would like to know if you agreed to that.
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Old 02-15-2011, 10:08 PM
walshch walshch is offline
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As Keepsmiling asked...What does your Separation Agreement say that you agreed to ? In order for it to be a binding agreement (or Contract), your signatures have to be witnessed. See Section 54 & 55 (1) of the Family Law Act. It is advisable to have a lawyer review the agreement before signing, to aleviate the defense that it was signed under duress or didn't understand what they were signing. A mediator cannot unilaterally change a Separation Agreement without BOTH parties consent. An Arbitrator has a little greater power, in that both parties are giving Prior Consent to abide by the Arbitrators ruling. Even a Judge at Case Conferences cannot change your Separation Agreement without consent, unless it is in the Best Interest of the Child. See Section 56 (1) FLA If your Ex wants to stick with whatever your agreement says, then a mediator will be of no use.
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Old 02-16-2011, 08:23 AM
donnel8 donnel8 is offline
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We both waived CS and we both agreed to her paying 55% of all extra curricular activities. We agreed that after the nanny worked out her existing contract (which she has not broken 7 months early)/ after the contract expires we would review and mutually agree to any new terms for the cost of child care and the division of payment for the child care. It does not spell out 50/50 and does not spell out proportionate. All other child care expenses not listed herein shall be split equally between us. We share the kids exactly 50/50.

While the difference is only 5% and seems trivial it amounts to a lot more - daycare for our three year old son and before and after school care for our daughter going forward. They are both young so payments are being made for the next several years, not just one or two. We also have to add in camps throughout the summer as well.

I contacted the original lawyer that wrote the agreement for us and his response was he thinks given we split the kids 50/50 that it should be split 50/50 in cost, but that is only a starting point. He also said that given you both wanted to to come to a mutual agreement in the beginning by having onie lawyer draw everything up, that we have to mutually agree. His opinion was that mediation is a waste of time and money given the difference is 5% and to focus on finding cheaper alternatives which meet both of our standards.

With respect to the SA, we had one lawyer draw it up then I had independent advice. I know the wording is grey regarding the issue but what are my options now?

How much is mediation/arbitration for this sort of issue?

If neither can force a change in an agreement without both of our consent, am I basically stuck?

Should I suck it up and move on as in the end, this will probably amount to more then $6000 until the children no longer require and such care? I'm not trying to be a hardass at all just fair and given the difference in income presently and more as time goes on, would like that reflected.

Does anyone else have similar "grey" wording in their SA?
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Old 02-16-2011, 08:25 AM
donnel8 donnel8 is offline
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What is included in section 7 expenses? This is not spelled out in our agreement either unfortunately, or is there one law that supports that regardless on the agreement? Are camps considered section 7 if they are necessary because they are daycare?
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Old 02-16-2011, 08:29 AM
donnel8 donnel8 is offline
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NBDad:

I am in the process of applying for CCTB to be split 50/50. Daycare costs occur after the CCTB. Up until now we have just used the CCTB to put into an resp for the kids. As stated I am changing that now so we can at least claim in on our taxes and it doesn't automatically go to her. We don't qualify for UCCB.
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Old 02-16-2011, 09:45 AM
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You have a mediated solution, the single lawyer you consulted acted as a mediator. The agreement unfortunately isn't comprehensive. Keep in mind that a mediated solution will never exactly be what the courts would say; it is intended to be a compromise and that means you will always give something up, like for example a 55/45 split.

There is a strong argument to say that the way the cost of nanny was split should be the way the cost of daycare is split. Otherwise there is no guidance.

The agreement doesn't resemble what a court would have ordered but that doesn't make it a bad agreement. You have a compromise and avoided tens of thousands of dollars in legal costs. You can try to reopen it which is dodgy in itself, you need to show there was a material change in circumstance. The agreement may or may not stand up in court. No one here can promise that. Otherwise if you can't get your ex to compromise again on the daycare issue there is little you can do that won't cost more in legal fees than you stand to gain in support.
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