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Prevalence of annual adjustment of SS?

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  • Prevalence of annual adjustment of SS?

    Hi,

    Long term marriage/rule of 65 applies. Self-representing. At this point we are negotiating. The first case conference date is in a few months.

    I'm in negotiations with my STBX through her lawyer. She asked for spousal support to be adjusted annually based on my income tax returns. She proposes a fixed percent of my salary "indefinitely" (due to rule of 65.)

    I'm proposing a fixed amount, based on my present income, indexed to CPI. Spousal support will likely be her only income and my proposal would give her the ability to live comfortably.

    Her lawyer claims that the law provides for annual adjustments and that this is the way to go. I realize that you do this for child support but I don't see that in the Divorce Act or the SSAG for spousal support.

    I've seen some CanLII cases that support both points of view.

    Who has the stronger case? Have there been any recent key cases that lean one way or the other?

    Thanks!

  • #2
    Of course you are smart because you do realize that it would be foolish to accept anything her lawyer says.

    There is nothing in the Divorce Act that stipulates a cost of living increase. Anything to do with SS is negotiated. Also remember that SSAG is but a "guideline" nothing more - certainly not the same as CS.

    Don't get derailed. Insist on a regular period of review. If you get that in your separation agreement then a Material Change of Circumstance to change SS is not required. This is very important.

    Comment


    • #3
      I work with lawyers so I know the game.

      My concern with regular periods of review is that if I get a new position or promotion and 3 years from now are making 25% more, wouldn't my ex ask for a portion of that at review? How much of a claim would do ex's have to post-divorce windfalls?

      I realize that if if I'm making less or want to semi-retire the review could benefit me but I'm thinking that limiting things to material changes will give me more certainty.

      Comment


      • #4
        Its a crap shoot that's for sure.

        Requesting doesn't automatically assure your ex that she will be successful.

        If you agree to exchange financials yearly then any change of income would eventually be revealed.

        Reviews examine the quantum/duration. Often SS is stepped down or eliminated.
        Last edited by arabian; 12-07-2015, 01:45 PM.

        Comment


        • #5
          I can't see the advantage of not having a review period. We see a lot of posters here lamenting that they didn't put a review in their agreement, but very few who have a review period and wish they didn't.

          Of course, you can't have it both ways - if your ex isn't entitled to any of your post-divorce "windfalls", she also can't be expected to take on a share of any post-divorce financial pitfalls you might hit.

          Comment


          • #6
            Thanks for the input.

            I'll have to spend some more time on CanLII. (It really is an amazing system. This forum and CanLII have been the only positive aspects of this whole experience.)

            If, post-divorce, I go and knock myself out working long hours and am successful, I don't want my STBX to come back one a year and say, "gimme more." I have to try and assess the risk of that. If I find some good cases on CanLII, I'll come back and post them for the benefit of others.

            Comment


            • #7
              Then I suggest you negotiate an agreement that specifies what you want. Importance is in the wording. This is where a very skilled and competent lawyer can be invaluable.

              In reading CanLii (check all the provinces as well as Appeal Court decisions) you will find that judges are not in the habit of interfering with privately negotiated agreements UNLESS one party puts forth the argument that they did not have independent legal advice (ILA).

              Rule of thumb is to be generous and specify "unforeseen" circumstances (re-partnering, illness, etc.). As long as all of these are contemplated at time of agreement you shouldn't have anything to worry about.

              Comment

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