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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 06-24-2010, 08:46 AM
unchartedwaters unchartedwaters is offline
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Default Common Law Seperation with children Opinions please

Unfortunately I find myself in a position that requires I edumacate myself in the areas of family law...and it sucks. Anywho I would like to explain my situation and get some opinions on what to expect.
My GF and I have been living together since June 2006. We now have two children under 3 and a house we have both our names on. She has informed me that she wants to leave and now we are trying to figure out a separation agreement etc. As much as possible we want keep this as civil as possible since we will be dealing with each other (kids) for many years. SO far we have agreed to a 50/50 shared custody of our little girls and that I should buy her out of the matrimonial home. At least the familiararity (is that a word?) of the house would provide our girls with some form of normality through the process.
She makes about 47k and I make about 78k so she tells me that even though it's 50/50 I will have to pay child support. She also wants me to give her the car which I bought and is in my name and she wants half the value of the house. The part about the house gets me because I provided the 25k down payment and we have only had it for 1.5 years.
She also mentioned she is willing to negotiate on the CS since she wants the car etc.
May I ask some of you more experienced with process what I may expect? Can we negotiate CS ourselves or will this come back to haunt me?
I want to keep this as civil as possible but don't want to be taken advantage of either.
Opinions please.
  #2  
Old 06-24-2010, 10:05 AM
Mess Mess is offline
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Federal Child Support Guidelines

There is nothing wrong with doing it yourself if you are careful and stay agreeable. Read through those guidelines and print out the worksheets (they are easy to do but take some time) and fill them out and do the proper calculations.

This is important for two reasons. First, negotiating with your ex you want to keep opiniion out of it as much as possible, so having the worksheets properly filled out and going by the Federal Tables will keep things objective. You can present the worksheets and totals to her, call it a starting point, and go from there.

Secondly, if there is a court challenge in the future, you will be able to show that you were both reasonably informed and worked together and made an agreement that was according to the tables or close to it, and the children's needs were taken care of. Being able to show something physical in court is very helpful, you want to have some paper trail.

We never want our house to burn down, but we get fire insurance anyway and keep a fire extinguisher in the kitchen. So keep a paper trail of your negotiations in case there is a challenge years later.

Your agreement is not absolutely binding unless you each get independent legal advice and the lawyers each sign the agreement with you. That said, if you agree on asset equalization (for common law this is only joint accounts and anything you bought together) then that is easy to sign off on. For custody, once you settle into a routine you have Status Quo and this will be hard to challenge anyway. Custody can be reopened despite a signed agreement but you need very good reason. If the kids settle in and a year goes by, it is pretty much as binding as a court order.

A deal on child support would be easiest to challenge later if it is just an agreement between you. You cover yourself by staying reasonably close to the Federal Tables and you each acknowledge the practical reasons for any compromise deal, and you make sure the children's needs are cared for. It is then less likely that anyone would have to pay arrears totalling the missing Table amount.

What I mean, if the Table amount is $800 and you pay $600, and 5 years later she challenges you in court for the arrears, the court could find that you have to pay all or some of the $12000 difference. But if you show in your agreement what the reasonable cause is for reducing the Table amount, then it is less lilely a judge would overturn your agreement.

Note the with 50/50 shared custody, you take the Table amount she would pay at her income and subtract it from the Table amount you would pay at your income, and the difference is what is paid. So there is already a compromise, if this is about what you were expecting to pay anyway, she isn't doing you any favours by taking the vehicle.

Try to write in as much language in your agreement as you can referring to shared parenting, joint legal custody and joint physical custody. Write a Parenting Plan outlining the schedule, also noting that you will each care for the kids in turn when they are sick, share holidays (alternating for example) share doctor's and dentist visits, share in school and recreation activities. Spell out Shared Parenting and don't just rely on a 50/50 timeshare to define your custody. Show that the spirit and intent of your agreement is that you are equally involved in your childrens' lives.
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Old 06-24-2010, 10:52 AM
HammerDad HammerDad is offline
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Good for you and your soon to be ex for negotiating 50/50.

Quote:
Originally Posted by unchartedwaters View Post
She makes about 47k and I make about 78k so she tells me that even though it's 50/50 I will have to pay child support.
She is correct, you will have to pay child support. However with 50/50 the amount will be a reduced amount.

Based on your income of 78k you would have to pay her $1,135. Based on her salary of 47k she would have to you $710. So it works out that you have to pay her $425 per month in equalization.

Quote:
She also wants me to give her the car which I bought and is in my name and she wants half the value of the house.
Would this be in the form of a lump sum child support payment, or equalization of assets? If the car is in your name, it is your asset and she is not entitled to it. In common law you don't have the same rights to assets as you would if you were married.

Quote:
The part about the house gets me because I provided the 25k down payment and we have only had it for 1.5 years.
What you would have to do is get a valuation done on the house by a realtor. You take value provided by the realtor and subtract what you purchased the house for. Lets say you bought the house for 300k and you've paid off like $4k in mortgage, and it is now worth 310k. She would be entitled to $7k. You are entitled to your down payment back as your initial equity contribution to the house. She would be entitled to any down payment she contributed.

If she thinks that you bought the house for $300k, you put $25k down for a 275k mortgage and you've paid $4 in mortgage, so the balance on the mortgage is 271 but the value of the house is 310k, so she is entitled to nearly 20k, she is mistaken.

Quote:
She also mentioned she is willing to negotiate on the CS since she wants the car etc.
How much is the car worth? 10k, 20k? At $425 per month you would be paying $5,100 a year. If she is willing to take the car as a lump sum payment by you, it would depend on the value of the car as to how it would affect your c/s and for how long (if the car is worth $20k, you could negotiate not paying c/s for 4 years or 1/2 it for 8). But if you do this, be sure to get this in writing. Last thing you want is her to get mad one day and claim arrears because you have no paper work providing that the car was a lump sum payment and not a "gift".

Child support is legislated, so there is little wiggle room aside from a lump sum payment. You make X you pay Y.

And as Mess, no matter what you negiotiate, you should each get a lawyer to go over it with you. Don't let the lawyer pressure you into a corut battle, but go over what you may be entitled to or not entitled to. It will help with enforcibility in court if ever questioned and at that point no one can say "they didn't know better" or "felt pressured to sign".
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Old 06-24-2010, 11:02 AM
dinkyface dinkyface is offline
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Not sure about the house split - I think because both of your names are on the TITLE (the mortgage contract doesn't matter) then the house (i.e. house market value - outstanding mortgage) would be split 50-50, regardless of who provided downpayment or who was paying the mortgage/taxes. Check that out. If true, then since you bought it recently, probably it is not too much more than the $25K downpayment that you would be splitting. So a 50-50 split would entail you paying her maybe $20K (?). And then she has to cover the mortgage payments from now on (not your problem, but do you think she can afford that?)

I don't think she could claim for spousal support, because she makes 71% of your income (after factoring in $5100/yr CS payments), and anyway it would probably be for 2 years only (half the time you were together).

You will also be splitting daycare expenses proportionally according to your incomes.

Last edited by dinkyface; 06-24-2010 at 11:04 AM.
  #5  
Old 06-24-2010, 11:22 AM
HammerDad HammerDad is offline
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She is not entitled to claim his contribution of the down payment as part of the equity of the house. They both are allowed to deduct any contribution they made personally. If it was a scenario where they sold an old matrimonial home and used the proceeds towards the next house, he would have a much harder time time trying to separate the funds.

I also doubt there would be any spousal support given the short length of the relationship.
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Old 06-24-2010, 12:17 PM
unchartedwaters unchartedwaters is offline
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I thank you all for taking the time to reply. This is all a real eye opener.

I guess I was wondering if we could legally negotiate a different CS amount if both parties agreed? And would it be court proof if there was a change of mind or heart down the road. Something along the lines of she agrees to a reduced monthly CS payment and I give her the car (worth only about 6-7k btw) and forget about my 25k down payment and split the house value (and debt) right down the middle.

This would help me reduce monthly payments and give her the cash she would need to purchase herself a new home.

If we went by the book (as I interpret it) she would have to buy a car and she would have enough cash left over from the house sale/deal for her to make a good start i.e. buy herself a place.


On the other side of the coin I'm concerned about what may happen if after the car is in her name and the house money is transferred over she decide to change her mind and want full CS? I'd look and feel like a real idiot if that happened...well, more of an idiot.

Oh, and please please don't think I (or we) have lost sight of our children. They will be first and foremost in all our decisions. In fact it rips me apart that we weren't smart enough to make this work!

Thanks again for all the opinions and info
Unchartedwaters
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Old 06-24-2010, 12:24 PM
unchartedwaters unchartedwaters is offline
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Quote:
Originally Posted by HammerDad View Post
Good for you and your soon to be ex for negotiating 50/50.
Thanks for the kudos on the 50/50 decision HammerDad. I'll/we'll take any pat on the back we can get right now. Were not feeling overly proud of ourselves these days
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Old 06-24-2010, 12:52 PM
HammerDad HammerDad is offline
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Quote:
Originally Posted by unchartedwaters View Post
I guess I was wondering if we could legally negotiate a different CS amount if both parties agreed?
The amounts are legislated. The only thing you can negotiate is method of payment, meaning you give her a car worth $6500 in lieu of ~15 months child support or 2.5 years of 1/2 support. Once the value of the consideration you gave her (the car) has been (for lack of a better term) paid for, support would increase to its guideline amount. Or you could agree for pay $200 less for 32.5 months. But the amount she is willing to concede in exchange for the car cannot exceed what the guideline amount would be.

I note that this does not include the fact if either of your incomes change from year to year. Each year both parties are to provide their tax returns to each other to determine what the new child support will be going forward. So if you both get 3% raises, you need to go back to the guidelines and figure out what you owe each other and do the math again.

Quote:
Something along the lines of she agrees to a reduced monthly CS payment and I give her the car (worth only about 6-7k btw) and forget about my 25k down payment and split the house value (and debt) right down the middle.
If you are willing to part with the 12.5k of the down payment and the 6.5K car as an upfront lump sum payment, you can do that. But I wouldn't give her the impression that she is in anyway entitled to that 12.5K. Not to be hard here, but in divorce you want to be clear about what each party is entitled too. If you start putting an inch of $$ signs in front of the other party, they may want to take that extra mile.

Quote:
This would help me reduce monthly payments and give her the cash she would need to purchase herself a new home.
If you are in a position to do this, then great. But know that a court will probably not like it if you don't pay support. I would work on a payment schedule where you get a reduced c/s amount by like $200 a month for the next 8 years (which is 19k divided by 200 divided by 12).

Quote:
On the other side of the coin I'm concerned about what may happen if after the car is in her name and the house money is transferred over she decide to change her mind and want full CS? I'd look and feel like a real idiot if that happened...well, more of an idiot.
You would have an agreement that provides that:

Party A is the registered owner of Vehicle X having a fair market value of $X. Party A and Party B agree that Party A shall transfer Vehicle X to party B in consideration for which Party A and Party B agree that the child support payable by Party A to Party B shall be reduced by an amount $XX for a term of X months, so long as such term and amount does not exceed the fair market value provided for above.
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Old 06-24-2010, 12:52 PM
Mess Mess is offline
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A deal that isn't by-the-book will never be 100% court-proof. We can only say what will "usually" happen because it can depend on the judge, it can depend on how good your lawyer is, it can depend on what the material circumstances are at the time of the challenge.

If you pay full (offset amount) support she can use that money to lease a car. There are always options. If her funds are so tight that she can't afford to get her own car, then she won't be able to afford insurance, gas, repairs etc with a lessor amount of CS coming in. You can't control her budget or control any unforseen expenses she runs into. So you can't say she won't suddenly realize it isn't working in 6 months or a year.
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Old 06-24-2010, 12:58 PM
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Just the fact that you are both trying to consider the impact this will have on your children, is something to be proud of!!!!

In most situations, parents tend to forget how vulnerable their children are, and instead of working together FOR their children, they try to tear each other apart using their children as weapons.

When all is said and done, they are all that really matters.

Good luck!
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