SS Review

[winterwolf7]

Originally during separation one of the first things my lawyer hit me with was the need to pay spousal support for my ex as she was a stay at home Mom for the last 3 years of our 6 year marriage.

She and my ex's lawyers presented me with the typical DivorceMate calculation showing the ranges my ex would be entitled to.

I began paying the median amount as soon as the house sold, and before the house sold I paid her the median amount minus her share of the mortgage.

During the course of negotiating a settlement the spousal support was finalized. I argued for a slightly lower amount because she refused to drive at all (I was living 5 minutes away by car) and I needed a vehicle. I was also maintaining health and life insurance for them at my expense.

We compromised on an amount (1075 instead of 1130) which wasn't much of a victory. You can't exactly own a car for $60 a month. We agreed to review in 3 years when my son is of age to enter school full-time and this should be the normal duration for a 6 year marriage anyways.

The divorce proceeded and was finalized in the spring.

Now we are approaching the July 1st date to review child support and looking at financials. Now I have learned that my ex never included or disclosed any of her government and family benefits during the negotiations. I am paying spousal support as if her income was zero, when it's more like 12k per year from benefits alone.

It is very clearly spelled out in the SSAG that all benefits (CCTB, UCB, CDB and HST/GST credit) are included in the recipients income for the calculation but my ex never produced disclosure of these amounts.

I knew something was up when we exchanged rudimentary financials and saw that her net income was more than 50% higher than mine. She doesn't have a job while my salary is above $60k.

Am I stuck paying almost double the SS amount I should be paying because she didn't disclose her financials at the time? Would getting financial disclosure from her now be sufficient grounds to adjust the amount on a motion to change?

I have been living in desperate poverty since separation with more than 75% of my gross salary being taken... turns out because I have been paying $1075-1130 per month instead of more like $600-700.

[Mess]

If I were you, I would send her letter stating that the three years is up and I would be ceasing spousal support payments as of 30 days. I would state that if she disputes this, she needs to give me a written response indicating her expectations and supporting reasons.

However I would ABSOLUTELY protect myself by setting aside the spousal support amounts in a separate savings account and not touching them. You never know how this sort of thing will turn out.

You then want to draw up an amending agreement, both of you get ILA and have it signed off by your lawyers and notarized.

If she does not agree, I would immediately file a motion to end support, and prepare a detailed account of the information you documented here. One of my issues would be her non-disclosure of income and the inaccuate calcualtions for the support that was agreed to in good faith.

Put it all in there, but in the right order. You are seeking to reopen the support issue as per the agreed to three years. You have sought to settle out of court with what you feel to be reasonable (ending support.) You state the reasons as being the child entering school full time, as well as the short length of your marriage which does not suggest a length of support longer than 3 years. You further state that your ex is employable and was not out of the workforce long enough to be considered unemployable. Finally you bring up the issue of undisclosed income and that you would have disputed the original agreement if lawful financial disclosure had been made. Back it all up with full documentation, including a search for jobs she is qualified to apply for.

[winterwolf7]

The three years are not up, that's the problem.

We have a bit over one year to go and I have discovered that the SS calculation was botched by our lawyers because she didn't disclose any income right from the beginning. Only now am I starting to see any financial information for her.

I agree that knowing I have been overpaying all along makes it much more likely that the support should terminate after the 3 years are concluded.

I realize it's unlikely I'd be able to get back the money retroactively, although my ex has more than enough equity to repay me thanks to the cash settlement she also got.

But what are options of reopening it now? Pretty slim without a serious material change in circumstances I would guess.

[Rioe]

Didn't Tayken just recently say that there were two valid reasons for a separation agreement to be reopened?

One was that child support can always be re-evaluated, and the other was in the event of improper financial disclosure. Sounds like you qualify under the latter.

However, you'd want to weigh the legal costs of the re-opening vs the amount of money you could potentially save from doing so.

You'd probably want to get a quick session with a lawyer, or duty counsel, to find out what the cost of such a change might be. You could also present an offer to your ex that due to the recent revelation that her financial disclosure under-reported her income and that you have consequently been overpaying spousal support for two years, you propose that you cease paying at two years instead of the three in the original agreement, in lieu of taking her to court and addressing the issue that way. Point out that this way, you both avoid legal fees, and she avoids paying your costs, which she would have to do as her lack of proper financial disclosure is what triggered all this. Assure her that you will pay your proportionate share of section 7 child care expenses once she finds employment and the child enters care.

She'll either agree, and then you take it to lawyers and make it an official amendment to your agreement, or she'll laugh and you end up in court, reopening the agreement. As you made a reasonable effort to avoid court, and it was her actions that made it necessary, she'd hopefully have to pay your costs.

[arabian]

Go back to the lawyer that botched this up and demand that he/she file an immediate motion to have the spousal support stayed. You most certainly can have an order where she has to reimburse you for the overpayment. This can all be taken care of in under 15 minutes in court.

[beebie]

I would not be so sure that the Court will take money back from your wife.

It is difficult because certain benefits that are counted as non income for CS are counted as income for SS (confusingly). The software is supposed to take care of all that.

So are you sure that a mistake was made? I would go back to check it out with your lawyer.

In any case, apply to terminate spousal support at 3 years. Or in my province, it will automatically terminate if no one goes into court on the review date.

If you are paying support for another year, the amount can be reduced to reflect any overpayment.

If the lawyer did make a mistake they should make the court application to correct it for free or reduced rates.

[Tayken]

Didn't Tayken just recently say that there were two valid reasons for a separation agreement to be reopened?

One was that child support can always be re-evaluated, and the other was in the event of improper financial disclosure. Sounds like you qualify under the latter.

However, you'd want to weigh the legal costs of the re-opening vs the amount of money you could potentially save from doing so.

Yup. Full and Frank financial disclosure is required under Rule 13 of the FLR. If you were handed a sworn document that is false or does not contain full and frank financial disclosure you have grounds on a change in circumstance.

Note: The evidence to the change in circumstance is your burden to carry. A statement in an affidavit isn't evidence. You need documented proof or a third party witness willing to come forward to the facts in support of the argument.

Heed the advice above though. The costs to reopen the matter is a pain.

You can make an offer to settle at any time and offer to settle on the proper numbers and credits for over payment. Put a time frame on it and if they refuse or don't respond reconsider your position and if it requires court involvement.

Court makes everything very very very ugly.

Good Luck!
Tayken