Ottawa Divorce .com Forums


User CP

New posts

Advertising

  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law > Common Law Issues

Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

Reply
 
Thread Tools
  #11  
Old 04-26-2013, 10:50 AM
Leviathan's Avatar
Leviathan Leviathan is offline
Senior Member
 
Join Date: Jan 2013
Location: Ottawa area
Posts: 301
Leviathan is on a distinguished road
Default

Quote:
Originally Posted by Pursuinghappiness View Post
Leviathan:

As I mentioned in PM, I think that's the right strategy. There's a reason she hasn't disclosed and ultimately its her responsibility to prove the entitlement. Giving her money before she does that always sets a dangerous status quo based on need-based SS.

I'd just put the money aside just in case so you're not screwed if she wins.

Retroactive SS is probably not going to happen...especially if she walks a motion in without those disclosures. Highly improbable unless you get a bad judge.

Yes...you're correct pursuing, I remember you mentioning...I just thought I'd throw it out there and get a little more info/opinions from everyone...
Reply With Quote
  #12  
Old 04-26-2013, 10:56 AM
Leviathan's Avatar
Leviathan Leviathan is offline
Senior Member
 
Join Date: Jan 2013
Location: Ottawa area
Posts: 301
Leviathan is on a distinguished road
Default

Quote:
Originally Posted by Exquizique View Post
If you have a strong position for not paying SS, and have grounds and facts to prove that she has no entitlement to SS, I would not pay a cent until the other party establishes entitlement. Since you're already paying, set a drop-dead date by which you expect to receive disclosure from the other party that would PROVE/ESTABLISH entitlement to SS. If such disclosure is not received by this date, end all payments for SS. The onus is on the opposing party to prove entitlement.

By paying SS without the other party having established entitlement, you run the risk of implicitly acknowledging their entitlement. Unless your ex is in dire circumstances if you stop SS (ie. no where to live, children will be evicted from home, no money to pay for food, no money to obtain required medication for a critical illness/condition etc.,), the longer you voluntarily pay SS the more it becomes "accepted" that she has a valid need and entitlement to SS and that you have the ability to pay.

Establish your position clearly and firmly from the get go, and know where your boundaries and thresholds are. Again, keep in mind that simply because of a sizable disparity in both your incomes right now, there is a good chance that interim SS will be ordered if this proceeds to any pre-trial motions. This is a risk that you will have to mitigate if you stop paying SS and they decide to take it to court. However, if you have a strong case and they have no ground for entitlement, it either will not go that far or the court will recognize it and decide accordingly when it comes to trial.

SHH****TTT!!! I know...thats the scenerio I'm in now...do I continue with interim...do I not...do I wait for emergency interim motion from them and then when It's brought before the judge, we mention that they haven't given us the disclosures we've asked for and is why we stopped the voluntary interim??

or do I continue to pay the interim??...questions I'll definetly be asking my lawyer here shortly...as pursuing has stated to me earlier..throw the interim in a savings account and wait for them to contact us (we haven't heard a thing from opposing parties since the CC which was early Feb)...

I'm definetly confused here!! and pretty pissed off!!
Reply With Quote
  #13  
Old 04-26-2013, 11:04 AM
Exquizique Exquizique is offline
Senior Member
 
Join Date: Oct 2010
Posts: 451
Exquizique is on a distinguished road
Default

Quote:
Originally Posted by Leviathan View Post
SHH****TTT!!! I know...thats the scenerio I'm in now...do I continue with interim...do I not...do I wait for emergency interim motion from them and then when It's brought before the judge, we mention that they haven't given us the disclosures we've asked for and is why we stopped the voluntary interim??

or do I continue to pay the interim??...questions I'll definetly be asking my lawyer here shortly...as pursuing has stated to me earlier..throw the interim in a savings account and wait for them to contact us (we haven't heard a thing from opposing parties since the CC which was early Feb)...

I'm definetly confused here!! and pretty pissed off!!
Your lawyer will likely advise you to continue paying the interim SS until the matter gets resolved either through court or out of court settlement, especially if you had voluntarily paid it from the beginning, offered to pay it, or took your lawyer's advice to voluntarily pay an amount.

This is not necessarily "wrong" or "bad" advice.

However, if I was you, I would have my lawyer send correspondence to the other party to say that any future voluntary SS payments will be contingent upon receiving disclosure or information proving grounds for entitlement for SS by X date, and to please provide said disclosure forthwith.

If by X date this information has not been provided to you, notify the other party in writing that as of X date all voluntary spousal support payments will cease because entitlement has not been proven, and that your position is that there is no entitlement for spousal support. Then stop paying.

If the other party expresses outrage at the decision but chooses not to do anything about it, well, then you know they know that they have a weak case and won't pursue it. If they then go forward with a motion, then sort it out in court. Putting money aside for expected SS based on divorcemate calculations is always a good idea just in case an SS award is made (and most likely will if it's an interim award), if you can afford to.

Again, I am not a lawyer. You know your case and circumstances best.
Reply With Quote
  #14  
Old 04-26-2013, 11:10 AM
Pursuinghappiness Pursuinghappiness is offline
Senior Member
 
Join Date: Apr 2011
Posts: 2,819
Pursuinghappiness will become famous soon enough
Default

Quote:
or do I continue to pay the interim??
I definitely say no.

Like Exquizique said, if you pay in the interim, you're implying she's entitled to it and she hasn't proved that at all. In addition, you're setting up a status quo of paying her and now she can claim you're causing her a hardship.

Think of it this way, the court would prove her entitlement by using the disclosures you're waiting for. So all you have to show is that you requested the disclosures multiple times and she didn't supply them...how are you supposed to know she needs support with the absence of relevant materials? That she didn't supply them would seem to me to end the discussion about retroactive support.

I'm really surprised your lawyer is ok with you paying her without an order. Personally, I think by doing this..he's weakened your position...I'd stop until she files a motion and brings her evidence forward.

By the way: If you bank the money, just in case she proves entitlement, you're no worse off. But if you give her money in unsubstiated payments that she can't prove entitlement for in the future, what are the chances that you're going to get it back...or get it back without incurring court costs?

Last edited by Pursuinghappiness; 04-26-2013 at 11:14 AM.
Reply With Quote
  #15  
Old 04-26-2013, 11:14 AM
Leviathan's Avatar
Leviathan Leviathan is offline
Senior Member
 
Join Date: Jan 2013
Location: Ottawa area
Posts: 301
Leviathan is on a distinguished road
Default

Quote:
Originally Posted by Exquizique View Post
Your lawyer will likely advise you to continue paying the interim SS until the matter gets resolved either through court or out of court settlement, especially if you had voluntarily paid it from the beginning, offered to pay it, or took your lawyer's advice to voluntarily pay an amount.

This is not necessarily "wrong" or "bad" advice.

However, if I was you, I would have my lawyer send correspondence to the other party to say that any future voluntary SS payments will be contingent upon receiving disclosure or information proving grounds for entitlement for SS by X date, and to please provide said disclosure forthwith.

If by X date this information has not been provided to you, notify the other party in writing that as of X date all voluntary spousal support payments will cease because entitlement has not been proven, and that your position is that there is no entitlement for spousal support. Then stop paying.

If the other party expresses outrage at the decision but chooses not to do anything about it, well, then you know they know that they have a weak case and won't pursue it. If they then go forward with a motion, then sort it out in court. Putting money aside for expected SS based on divorcemate calculations is always a good idea just in case an SS award is made (and most likely will if it's an interim award), if you can afford to.

Again, I am not a lawyer. You know your case and circumstances best.
You may not be a lawyer Exquizique but you're making alot of sense!!...I appreciate it, Thanks.

Last edited by Leviathan; 04-26-2013 at 11:28 AM.
Reply With Quote
  #16  
Old 04-26-2013, 11:27 AM
Leviathan's Avatar
Leviathan Leviathan is offline
Senior Member
 
Join Date: Jan 2013
Location: Ottawa area
Posts: 301
Leviathan is on a distinguished road
Default

Quote:
Originally Posted by Pursuinghappiness View Post
I definitely say no.

Like Exquizique said, if you pay in the interim, you're implying she's entitled to it and she hasn't proved that at all. In addition, you're setting up a status quo of paying her and now she can claim you're causing her a hardship.

Think of it this way, the court would prove her entitlement by using the disclosures you're waiting for. So all you have to show is that you requested the disclosures multiple times and she didn't supply them...how are you supposed to know she needs support with the absence of relevant materials? That she didn't supply them would seem to me to end the discussion about retroactive support.

I'm really surprised your lawyer is ok with you paying her without an order. Personally, I think by doing this..he's weakened your position...I'd stop until she files a motion and brings her evidence forward.

By the way: If you bank the money, just in case she proves entitlement, you're no worse off. But if you give her money in unsubstiated payments that she can't prove entitlement for in the future, what are the chances that you're going to get it back...or get it back without incurring court costs?
Pursuing is making sense here too!!!... Yes the stbx and her lawyer threatened to go to court for an emergency motion..this is when my lawyer (she's female) said...let's throw some $$ at them to keep them happy..(so to speak)

It's not SS or CS (although thats what stbx is going after)...IT'S INTERIM SUPPORT" I know...it is tricky...I wasn't pleased either but with the stbx's lawyer whining about the stbx's health and whatnot...I was in a tight position really
Reply With Quote
  #17  
Old 04-26-2013, 03:17 PM
arabian's Avatar
arabian arabian is offline
Senior Member
 
Join Date: Jan 2011
Location: Western Canada
Posts: 10,650
arabian will become famous soon enough
Default

As a receiver of SS I will throw my hat into this discussion:

I would keep money aside if you are unsuccessful and have to pay arrears.

I would not pay anything without an INTERIM ORDER.

Interim Orders can be good for both sides as it clearly sets out reasons, terms and length.

If your ex has no other income, and she hasn't provided financial disclosure, I would not pay any more until she provides documentation. Your lawyer can simply send a letter to opposing counsel giving them 30 days to turn over financial disclosure. If you don't receive it by that date then money stops. Often lawyers can make agreements simply over the phone and the two of you should be able to get an interim order by consent filed.

Just my 2 cents....
Reply With Quote
  #18  
Old 04-26-2013, 03:21 PM
Leviathan's Avatar
Leviathan Leviathan is offline
Senior Member
 
Join Date: Jan 2013
Location: Ottawa area
Posts: 301
Leviathan is on a distinguished road
Default

Quote:
Originally Posted by arabian View Post
As a receiver of SS I will throw my hat into this discussion:

I would keep money aside if you are unsuccessful and have to pay arrears.

I would not pay anything without an INTERIM ORDER.

Interim Orders can be good for both sides as it clearly sets out reasons, terms and length.

If your ex has no other income, and she hasn't provided financial disclosure, I would not pay any more until she provides documentation. Your lawyer can simply send a letter to opposing counsel giving them 30 days to turn over financial disclosure. If you don't receive it by that date then money stops. Often lawyers can make agreements simply over the phone and the two of you should be able to get an interim order by consent filed.

Just my 2 cents....
thanks Arabian...she's already given financial disclosures..the disclosures I'm referring to helps decide on CS IF any any is entitled...again, long story I don't want to through out here in public forum...If you'd like a little more info on it, I can PM..

it's rather unique really...ask pursuing
Reply With Quote
Reply


Currently Active Users Viewing This Thread: 1 (0 members and 1 guests)
 
Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is On


Similar Threads
Thread Thread Starter Forum Replies Last Post
FRO not applying payments to arrears Spoonz Financial Issues 7 09-22-2010 10:39 AM
reduction of arrears OliveT Financial Issues 0 08-06-2010 01:45 PM
Court Interest - Post-judgement and Separation Agreement. Taxes on arrears Blueeyes Divorce & Family Law 3 05-22-2010 07:39 PM
Support Arrears littleman Financial Issues 1 06-01-2009 10:18 PM
Arrears and 'Severability & Costs' inlimbo Financial Issues 1 11-28-2006 06:56 AM


All times are GMT -4. The time now is 04:22 AM.