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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #1  
Old 09-02-2010, 10:47 AM
Paytable2 Paytable2 is offline
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Default Support calc 50/50 split, disproportionate income

My situation has changed last month as per our S/A where I now have my kids 50% of the time up from just under 40%.
I am still paying full table amount approx $1300 as our S/A does not deal with reducing support with the change in time.

My X is remarried. His income approx 60-70k
My income is roughly 90k, hers, 35k.
She was working for around 45k-50k but quit to work at home for less, I'm sure because she remarried, and add in my support she doesn't NEED to.
Her household income (no support added) = 95k+

I want to suggest changing support calc. from full table to the set off method. This would result in $521 support due on her income so deduct that from my current table support. I would have to pay extraordinary expenses and clothing etc (which I am currently exempted from as per our agreement) but I'm positive the $6000+ per year I will get to keep will more than cover that and will help cover my expenses for food etc.

From researching onlin, my understanding is that if I were to ask in court for the set off method they would also look at household income to ensure the standard of living in one household was not grossly disproportionate to the other. Given that their combined income is the same or more than my income, my paying any support gives their household a higher standard of living the way I see it.

What I want to know is:

1) I am told that at 35k vs 90k income both single I would likely not get any relief at 50/50 split because after support our household S of L would be close to the same. Am I correct in assuming that his income now would be included in the household S of L calculation?

2) If standard of living is equal, how do the courts calculate support with 50/50 split. Ie, do they assess no support is due or do they still take her support payable and my support payable and assess I pay the difference?

3) If I need to go to court to ask for this (assuming X will not agree), is it likely I can expect a judge to order offset calculation?

4) Is the set off amount even reasonable given household incomes are equal or should support be less or even nil?

FWIW, I am not trying to escape supporting my kids but I believe it is fair that given 50/50 split, equal Household incomes that some relief is fair or their standard of living will be significantly higher than mine. Even by the offset method their household will receive $10,000 tax free $ more than me, I don't think that is fair.
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Old 09-02-2010, 12:20 PM
HammerDad HammerDad is offline
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Her new husbands income would most likely not be contemplated as part of each parents contribution to the kids. The only way I know of to open that door would be if she claimed undo-hardship, which is unlikely given your description.

So the offset would just be between you and her.
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Old 09-02-2010, 12:31 PM
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His income should not be considered - you should be using the offset method based only on your income and hers. BUT she should be working full time and close to her earning potential. It may be the case that she is making less because of her spouses income which means he is supporting her and in that case she is under employed and a higher salary should be imputed on her for the purpose of CS calculation. Them having more income than you is none of your business, her being under employed and supported by him is your business

Last edited by billm; 09-02-2010 at 12:34 PM.
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Old 09-02-2010, 02:48 PM
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I suggested using the offset method but she is claiming that she makes 1/3 of my income and as a result our incomes would be "equalized" by the CS if it were up to a judge.

This is concurrent with what I was told by my lawyer 3 years ago BUT that was when we were both single and I had only 40%. At that time I was told even if I had 50% I likely would not be given a CS reduction because even with full table amount, her income of 35-45K would be raised to a point still less than my own after support. In essence, our household standard of living would be equalized by CS.

My argument now is that the new spouse income changes the landscape such that there is no imbalance in household standard of living. I do not expect his income to be added to hers for support calculation purposes.

From what I understand it is the standard of living that decides undue hardship. Undue hardship is what she would claim if she were still single and I was looking for a reduction based on my 50% while I made 3x her income.

In short I read it that her spouse's income essentially eliminates her grounds for undue hardship as S of L is equal.
In reverse I think it also means I could potentially claim undue hardship based on their higher S of L if I pay full support.

Do you think that offset method is likely to be ordered by a judge?

Her 'under employment' is intentional I am sure, although I doubt I could win a bid to impute income.
The 'work at home' is running a home daycare (which she did throughout our marriage) and she will argue that she re-opened it as a 'sacrifice' so she could be home with the kids after/before school all the time. Kids are 12 and 9yrs so don't need after school care etc.
I suspect this story would probably sway a judge away from imputing income as she will play up the 'best interests' aspect, not to mention that is was the status quo in the marriage. Her income would never have been over $50k working anyway so the most they could increase it would be 10K-15K for support purposes.

What I really want is just to negotiate with her and come to an agreement to use the offset method. I just would like to know if push comes to shove will I likely win it in court?
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Old 09-02-2010, 06:35 PM
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The set-off method is required by section 9 of the Child Support Guidelines; the Child Support Guideline are required by the Family Law Act.

The household standard of living will not affect your support payments unless there is a hardship claim. It is not an automatic calculation. From your description there is no possibility of hardship claim. It does not happen that the set-off is automatically adjusted for each household's standard of living. If one side's standard of living is drasticly less then a hardship claim will be considered.

From your description, her table amount will be deducted from your table amount, there is no reason why not. If there is any change from this method a reason has to be shown. Can she show a reason? Can you? It does not seem so from your description.

From your description it is quite possible that she would be imputed a higher income, however this requires argument from you and she will defend herself, there is no guarantee but it seems like you have a strong argument.

I think you are more vulnerable due to the length of time with the new schedule here. It only changed last month. Is this change permanent, are the children settled in, is it working well? These things will come up.
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Old 09-02-2010, 07:23 PM
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NBDad NBDad is offline
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Did you get your kids more often because of a ratified Separation Agreement that gave you more time? Or is it an "off the books" increase?

If you have a SA that guarantees your over 40%, then go to court and ask for the set off calculation to be used. That's the law for your situation.

If the extra time is not ratified under a court document, then you should hold off for approx. 6 months to set "status quo" in terms of the time.

The new hubbies income will not come into play at all, unless one of you claims undue hardship.

CS is not used to "equalize" household incomes...has absolutely nothing to do with it. Child support is for the children, paid out based on the amount of time each parent has the kids.

You have a good case, but make sure she can't try to take back the extra time that puts you over the 40% threshold and try claiming it was only "temporary".
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Old 09-03-2010, 10:43 AM
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Quote:
Originally Posted by NBDad View Post
Did you get your kids more often because of a ratified Separation Agreement that gave you more time? Or is it an "off the books" increase?

If you have a SA that guarantees your over 40%, then go to court and ask for the set off calculation to be used. That's the law for your situation.

If the extra time is not ratified under a court document, then you should hold off for approx. 6 months to set "status quo" in terms of the time.

The new hubbies income will not come into play at all, unless one of you claims undue hardship.

CS is not used to "equalize" household incomes...has absolutely nothing to do with it. Child support is for the children, paid out based on the amount of time each parent has the kids.

You have a good case, but make sure she can't try to take back the extra time that puts you over the 40% threshold and try claiming it was only "temporary".
Yes the additional day was part of our signed S/A served on the court and part of the continuing record. My time is now
Week 1
P/U-Wed @4pm/T/F/S/S/Drop off for school Monday am
Week 2
P/U-Wed @ 4pm (after school)/Thurs/drop off for school Friday AM

Counting evenings/nights I am 50% W/T/F/S/S + W/T = 7 nights in 2 weeks.

No way for her to claim the extra time was 'good will' on her part or temporary as it's in our S/A specifically. I've been waiting 3 years for this. 3 years from the S/A date was last month and I am to get an extra day/week (Wed.) instead of just Thurs.


I know that CS and SS are not supposed to be used to "equalize income" but I'm told that is exactly what happens. Judges just claim "best interest of the children" from what I heard from 3 different family lawyers. Since my income is 3x hers I was told there would be NO way a judge would grant me less than table amount even with 50% because it would be viewed as not in the best interest of the children (aka undue hardship) that my income after support was still $15k higher than hers. Sucks but that's what i was told.

That's why his income is so important. I don't mind paying even if he made a million a year but I shouldn't have to pay full table with 50%. Basically, if there is no undue hardship for her there is no reason not to employ the offset method.

Currently I pay no extraordinary expenses (as per our S/A) . Asking a court to order the offset method would mean I would now be on the hook for Sec. 7. expenses plus I would have to provide clothing for the kids (currently she provides all of that & I pick up a bag every week).

I'm pretty sure that even if her income were pegged at the low rate of 30K it means $5328 per year in my pocket. From my experience that will WAY more than cover any expenses I now will need to pay plus I get the satisfaction of providing it MYSELF rather than her being the great provider of all things for the kids.

Thanks all for the input.
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Old 09-03-2010, 11:17 AM
Paytable2 Paytable2 is offline
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Quote:
Originally Posted by Mess View Post

From your description, her table amount will be deducted from your table amount, there is no reason why not. If there is any change from this method a reason has to be shown. Can she show a reason? Can you? It does not seem so from your description.
The current S/A says support shall be table amount revised annually on income. This was when things were less than 60/40.
It does not provide automatic change to setoff method, I would be asking for this based on material change of circumstances aka, the increase to 50/50.

Her stance is that there is undue hardship because of our income disparity.
My argument will be there is no undue hardship due to her marriage and second income that equals my income BEFORE a cent of support is exchanges.
I could claim undue hardship because we have equal S of L before support is paid? I'm thinking the difference of S of L is not enough to be deemed 'hardship' and a further reduction from the basic set-off amount would be unsuccessful.


Quote:
Originally Posted by Mess View Post
From your description it is quite possible that she would be imputed a higher income, however this requires argument from you and she will defend herself, there is no guarantee but it seems like you have a strong argument.
I agree, this would be kind of a long shot. I would claim she left the marriage, retrained, secured a job paying more$ then re-married and returned to a lower paying job. I would argue she was relying on his income to support her with the reduction in pay and that income for support purposes should be imputed at her previous job pay level.

She will argue that the shift work was taking her away from the children and operating a home daycare (which she did throughout the marriage) was solely for the children's sake and totally in their best interest.

It may be convenient for her, and it's hard to argue that having a parent home after school is not a good thing but what might a judge think of this is the question?
They may agree yes it's a good thing but will that overrule leaving a higher paying job willfully when support was about to be an issue?

Quote:
Originally Posted by Mess View Post
I think you are more vulnerable due to the length of time with the new schedule here. It only changed last month. Is this change permanent, are the children settled in, is it working well? These things will come up.
Since the change to 50% was written into the S/A 3 years ago do you think that still leaves me vulnerable?
It is working well, it's only 1 day per week more than I had before.

I'm sure she will argue I only want the change to reduce support, but I will argue I wanted this change 3 years ago and agreed to wait as she demanded to expedite the separation and that I paid support according to what was the law based on access at the time and now that the access has changed it's only fair that I pay according to the current status quo.

The only caveat here could be there has been a shortfall of support over 2 years as my income changed and I adjusted it when it went down but not when it went up (she also did not ask until very recently).
As it stands I would owe her some arrears I'm sure if it was to go to court, in the area of $4500.

My feeling is that she would seek the arrears, and I would be ordered to pay by a judge but would that prevent them from ordering the offset method or would it likely be they order offset and tack on the arrears?

Thanks again.
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Old 09-03-2010, 11:32 AM
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Since you have 50/50 legally, there is no reason why you should not be using the setoff method. Actually the setoff method should be in place as your situation (50/50) is why it was created to begin with.

I would send the ex a letter, preferably from your lawyer, that effect X month, you will be using the setoff method based off of incomes in accordance with the child support guidelines. You provide her with your last years income from line 150 of your income tax and request that she provide hers by X date. Advise her that if she fails to provide her line 150 income, you will impute her income to amounts she has previously advised you of ($35k) and provide her with c/s accordingly.

You further request that she provide you each year with her income based off of line 150 of her income tax statements, and that you will do the same. If she gets cute and all the sudden "doesn't make any money", you take her to court and have her income imputed at her earning potential, or failing that minimum wage full time.

You are within your rights to move towards the setoff amount. But you have advise her of what you are doing, that you are being reasonable in your amounts and that you doing this as it is in the best interests of the child.

If she wants to claim undo hardship, she would then have to open up her books to the judge, her husbands income would be included and she would lose even worse. But you have to start the push by telling her how it is, and that it is in accordance with your court order and agreement (well, better your lawyer then you).
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Old 09-03-2010, 07:47 PM
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If the spousal agreement requires the application of the Child Support Guidelines, then the set-off is already written in, as the set-off is section 9 of the guidelines. Unless you have some kind of really vague wording, you shouldn't need any change in your court order. She can complain but she has nothing to stand on.

Section 9
Quote:
Shared custody
9. Where a parent or spouse exercises a right of access to, or has physical custody of, a child for not less than 40 per cent of the time over the course of a year, the amount of the order for the support of a child must be determined by taking into account,
(a) the amounts set out in the applicable tables for each of the parents or spouses;
(b) the increased costs of shared custody arrangements; and
(c) the condition, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought. O. Reg. 391/97, s. 9.
Just to compare, my separation agreement specifies the application of the guidelines, so the set-off is automatic as long as we have a 60/40 split. We do mention "as per section 9" but don't bother to go into detail of set-off method.

How is you SA worded in terms of CS? Does it specify amount, or just "Table"?
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