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Spousal Support Variance - No children

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  • Spousal Support Variance - No children

    I am wondering if anyone has experience in getting a spousal support variance when there are no children involved, but one spouse is mentally ill?

    My husband was married to his ex-wife for 11 years (in a relationship for 16). She was diagnosed with bipolar about in 1999 and his life has been living hell because of it. They have no children.

    When they divorced in 2009, he agreed to pay 2500 a month in support for 10 years. He used a salary of 140,000 to base this on, and it was the salary used in the support formula. Since 2009, he took another job that paid 120,000.

    Today he found out he is laid off, no severance package.

    It seems like he makes a lot of money, but she did three school programs that he paid for - 60,000 in debt as well as consumer debt they acquired together. She took none of the debt with her.

    So, since signing the agreement, his income will have dropped by 140,000.
    However, she claims to not be able to work because of her mental health, yet refused to be identified as disabled. Which means we don't get to offset any of our payments with disability payments.

    On top of it, she calls herself an artist, and has a resume online that shows she has exhibitions and even volunteers as at a community store. I am also pretty sure she has been teaching ESL under the table.

    I don't envy her life. But we have a young daughter, a mortgage, plus all the debt payments from their marriage. Even trimming all bills and costs, we can't afford to pay her 2500 a month and still eat.

    We are meeting a lawyer next week, but I guess I was looking for some advice from someone who is familiar with any aspect of our situation.

  • #2
    Did your agreement have any kind of clause that the payments could be modified in the event your husband lost his job, etc. OR was it he paid $2500 a month come hell or high water OR was it silent on if his situation changed ?

    I think that will be the key. Hopefully there is something there.

    Otherwise, maybe try to negotiate with her; at a minimum have payments "suspended" until he gets another job.

    Sorry to hear that

    Comment


    • #3
      No clauses at all really. I think he had a pretty crappy lawyer to be honest. You would think she would have looked at it and tried to find spots in the agreement that would protect him.

      If we can't get a variance, it will come down to her bouncing checks. We have to heat our home, our mortgage is substantially less than rent we were paying before (and less than her rent as she lives in an expensive city). You can't get blood from a stone. I realize that it by no means a solution to just NOT pay. And that is not what we want... he understands he is required to pay. But if you take in 3 dollars, how are you to be expected to spend 5?

      Very worried about our future.

      We just bought our house, so there is no equity in it. The market is poor in our area right now, so we would lose money (the down payment his grandmother willed to us) if we tried to sell. Even is she could go after my income, that is what is going to keep us afloat, so it would be the same situation.

      Suckage. Total suckage.

      Comment


      • #4
        Variation: Material Change and Forseeability

        The Supreme Court of Canada in Willick v. Willick, [1994] 3 S.C.R 670 defined a
        material change for the purpose of variation of support orders as a change that, if known at the time of the original order would have resulted in a different order. The element of foreseeablity was added to the test for material change by the Supreme Court of Canada in B.(G.) v. G. (L.), 15 RF.L. (4th) 201, 1995 CarswellQue 23 (S.C.C.), which held that a material change was a "substantial, unforeseen, continuing change". Since very few life events are entirely unforeseeable, this element of the material change test has not been regarded as helpful in several subsequent decisions: see Marinangeli v. Marinangeli, 2003 CarswellOnt 2691.

        PS:
        I like that word suckage - never heard it before

        Comment


        • #5
          OK, well, ideally lawyer would have covered that off for you but it doesn't surprise me either..... I suspect if many lawyers were working on their OWN agreements personally they would pay more attention but anyway.....

          BUT, better "silent" than confirming you will pay REGARDLESS (then you could be effed).

          My thoughts.....

          -"common sense" would suggest that if it went to court , they should cut you some slack, at a minimum "suspending" payments until he got another job (but even then, what if not same dollar amount ?)

          -I don't think she can attack you but on the other hand, your income WOULD come into play if he claimed "undue hardship" so that might be tricky to claim

          -my suggestion is talk to the Mrs. Ex crazy chick (literally in this case !) and try to get an agreement out of court. As you said, if there's no money there's no money and you would likely get some concession in court albeit it would be expensive and time consuming.

          -by the way, IF you do go to court, try and get the agreement modified with wording to automatically address this should it happen again. Folks on this site I think do a better job than most lawyers and we're not as expensive lol (by the way, where do I mail you my bill ?).

          Good luck

          Comment


          • #6
            My recommendation...

            1) The VERY FIRST thing I would do is to send the EX a registered letter (with recept to you) advising her that support payor has lost his job, and requesting that all support payments be immediately suspended, or that they be lowered immediately from current level to some level you and your husband can afford. Make it clear in the letter that failure to respond within a certain time (I suggest 30 days) will be interpreted as a refusal to make change.

            2) Learn immediately how to file a motion, self represented, for a variation of spousal support amount, as a result of loss of job. Then file the motion. If you wish, make it a temporary change.

            3) Husband must immediately begin looking for work, and most imporatntly must keep a detailed record of all job seeking actions.

            4) I assume husband will file for UI. Just so that you know, UI IS income as far as CS and SS are concerned.

            STEP 1 is important for the following reason:

            a) It will take some time, possibly months, before you can get a variance at court.

            b) If you wish to have the change made retroactively to the date your husband lost his job, you need to be able to PROVE that his ex was advised, and that a REASONABLE offer of reduced support was made.

            Comment

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