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  • Paying back spousal support retroactive? Can this happen?

    Hi I'm new and I have no idea what I'm doing. The situation is I left an extremely violent and abusive marriage in the middle of the night one night 12 years ago with three children aged 6, 2 and 3 months old. It was a struggle. The kids and I all ended up sleeping on the floor of a room in my parents apartment for several months while I tried to get on my feet. I have only a grade 12 and had my first child at 19 and hadn't really established a career. I ended up dropping out of community college when sickness from the pregnancy made it difficult to continue. We left in Mar 2000 and finally in Dec 2001 all the court stuff was finished and I told I would receive both child support and spousal support. (I don't know if I'm giving too many details I just think if I fill in the whole story I will get a more correct answer).

    Around about that time I started dating again and got pregnant and it wasn't the best timing but the guy was a good guy and he seemed like he really loved me. He moved in and helped me take care of all my kids. He didn't make very much money though and finances were always a struggle. We eventually got married in 2005. Our financial situation stayed pretty much the same as always. In 2006 my oldest was having trouble in school. I was at my wits end. My ex convinced me he could straighten the kid out. I let him go live with his Dad. He lived there a few months and then came back to me. He started getting violent with his little brother so I sent him back to his Dad for a few more months. He came back and it was the same thing. By this time he was in 8th grade. He went back to his Dad for the last month of grade 8 and stayed there for all of High school.

    Fast forward to this July. My younger son decided to move in with his Dad. He didn't tell me where he was going so I called police. They found out he was at his Dad and because he's 14 now if he wants to live there it doesn't matter if I have custody. He's apparantly old enough to do what he wants.

    Now on Sunday he serves me a motion to change saying he wants full custody of both boys. He wants to stop paying support for all 3 kids and he wants me to pay him pay spousal support retroactive for the last 7 years. His reason for wanting me to repay the spousal support is listed as I remarried and I have been consitently working. I googled it and google is saying getting remarried doesn't automatically mean termination of spousal support. As for working consistently I printed off the last 11 years of tax returns. There are 4 years where I made around $20000, one year 12000 one year 7000 and all the others are under $5000.

    First of all I know this is both of our faults because we should have gone to court a long time ago as he has had 3 fiancees during this time and I got remarried. He makes almost double what he did 12 years ago and I am not completely self sufficient but I make more than I did 12 years ago. Plus we have the boys bouncing back and forth. I think all this court stuff is just so overwhelming.

    Any ways to make a way too long question shorter do you think they will actually make me pay back 6 years of spousal support? Has it ever happened before? I think my income is low enough to prove a need. And I never got to establish very much of a career because I was raising his kids. They're getting bigger now so it's gotten easier but when they were all babies at once it wasn't easy.

    The second part of the question is how far does retroactive usually go? When he served me these papers I realized he makes alot more than I thought and he's been underpaying me all these years. And I will probably have to pay him CS for the years when my oldest lived with him. And now that his income is so much higher he should be paying more for his youngest. And now that the middle child is living with him I should probably be paying him for that child. The oldest is graduated High School now and working full time. He still lives with his Dad but the oldest child earns way more money than I do so I can't imagine I have to pay support for him.

    Its such a complicated mess. I'm sorry. I can't sleep at night I`m so stressed out. Can someone ease my mind

  • #2
    Not likely that you would be made to pay it back, and certainly not all of it after all this time. If he had made some attempts to recoup the payments earlier and things had dragged on this long then yes, it's possible, however given that he made no attempts to deal with it at any point in time, it is highly unlikely that he would be successful in having you ordered to pay it back.

    At this point I would think you'd be more focused on repairing the relationship with your kids, restoring the relationship between your kids and having a 50-50 access and equal parenting arrangement.

    Comment


    • #3
      Thanks. I am focused on that. I am super easy when it comes to access. Basically if he wants it he gets it. As for my boys I wouldn't say our relationship is damaged or needs "repairing" The oldest will be 18 in 2 weeks and the youngest is 14. If they want to visit me they will. They know they are always welcome. Trying to force boys that age to do something they don't want to do doesn't seem like the best idea. I basically didn't ask for advice on that part of things because I think we're ok to work that part out. I am a very loving Mother and they know I would do anything for them.

      Comment


      • #4
        He will have to continue paying child support for the child that lives with you.

        You will have to pay child support for the children that live with him.

        As for spousal support, what does your agreement/order state about termination? Does it provide that SS will end upon remarriage or after a certain date? How long were you married to him? It sounds like he has been paying SS for 12 years now. Generally, SS is based off of 1/2 year of SS for every year of marriage. Using that math, you'd have been together for 24 years. But from your post, it sounds like you were only together for maybe 6 years. So SS should have likely been terminated a long time ago and definitely when you got married and another individuals stepped into the role of providing for you (it sounds like you were 30'ish at that time).

        Anyway, the likelihood of him receiving SS back from the date you remarried is slim unless he can prove that you hid the marriage from him. Even then, your agreement/court order would have to be reviewed to see if there is a termination provision.

        As for retro c/s from him due to his increased income? You are unlikely to receive anything. Why? Because during the time his salary was increasing he also had one child (and then another) for which you should've been paying c/s for. So it is possible that those amounts could setoff against each other.

        But he is entitled to c/s from you for the 2 boys. You are entitled to c/s for the younger child. SS should likely be terminated effective forthwith as you have had it for a lengthy period of time in comparisson to the duration of the relationship, you are remarried and you have an obligation to support yourself. I would provide him with an offer to settle providing for pretty much this.

        Comment


        • #5
          Hi there. The order doesn't state anything about when the spousal support should end. We were married 7 years. He knew I remarried. The kids were in the wedding and I legally changed my name to my new spouses plus he watched our kids while the new spouse and I went away on our honeymoon. And he knew it was my honeymoon.

          What I've asked for in my response is just that he pay the correct amount for my youngest child from here on, stop paying anything else and I'd just as soon drop all the stuff in the past.

          If he gets pushy I guess we could get into retro payents. I read somewhere that it is most common to go back 3 years. He has only presented me with his income for the past 3 years too so I don't know his income for the gap years. I did the math and if I pay him support for the oldest boy for the last 3 years and pay retro support for the younger boy for the last 3 months and if he pays retroactively the amount he underpaid me for the last 3 years (based on the cs charts) he will still owe me about $3000. After that each month by the time you subtract what I should be paying him from what he should be paying me he will be left paying me about $400/month.

          I really don't want to even be going through all of this. At the same time if we are going to court anyways there no reason I should just roll over. The CS isn't about me anyways. Its about the kids and what they deserve. Maybe the part that's hard for someone who hasn't been there to understand is that when it is an abusive person we're dealing with the abuse doesn't end even after you leave the marriage. Recently he has been using his new GF to intimidate me (I thought she was going to beat me up when she served me the papers). They send me nasty messages on Facebook but I don't want to block them because if I do I won't be able to see their interactions with my kids on FB. I just try to avoid him as much as possible. Even 12 years later he still terrifies me.

          Comment


          • #6
            Facebook is the devil.....separate yourself from him on it. There is NO REASON to be "friends" on facebook with each other. I am not sure what you mean about "interactions", if you mean what they do with the kids or how they talk about you, but either way....why punish yourself by digging into it? If they talk bad about you to the kids, respectfully request that they cease and desist. But if you are just going online to check and see what they did last week....uggg....

            Anyway, I'd make an offer to settle. Just because there is a motion in court doesn't mean you can't make offers to each other. Just be sure they are done in the right manner. Based off of a 7 year marriage (were you together in a common law relationship prior) you'd normally get 3.5 years of spousal support. That would put the drop dead date for SS (normally) at about the time you got married. Unless you have an issue and are otherwise incapable of working, I doubt it was intended that you got lifetime spousal support and it was likely just poor draftsmanship.

            Make multiple reasonable offers to settle. Yes, he should have been advising you of increases to his income and increasing c/s accordingly. The setoff amount for c/s should have been adjusted when the children changed residences. You could use the retro c/s as a carrot to get him to settle and move along, as that is what I would do. He likely has someone in his ear stating that he should've stopped pay SS when you remarried, but hopefully he does a cost/benefit analysis and sees life would be easier to just move along.

            Comment


            • #7
              Thanks Hammerdad. Thats what I needed to hear. He has always been able to intimidate me. I'm not his friend on FB. I just don't have him blocked. If he or his GF write on one of my kids walls I can see it. Most of the time it's harmless. Sometimes not like when his GF posted a picture of my 12 y/o daughter in her bra on FB. I just feel like I need to be aware of what they're posting on my kids' FB in order to protect them. In the case of the picture I was able to report it and have it removed.

              We were living together about 2 years before we married but no kids until after.

              How do you go about offers to settle? I went to FLIC and they said something about mediation but I didn't know what she meant. Is that where I would do an offer or would I just call him up and talk to him and them we fill out a form saying we agree?

              Comment


              • #8
                FLIC offers subsidized mediation where you pay proportionally to your income. Generally, it is quite cheap. They have a list of mediators (some are mediators are lawyers, mine was a former judge) in your area. You get the list send it to the ex and ask him to pick 3 from the list whom he prefers and see if you can agree.

                Mediation is where you both sit down, either together or separately and have someone try to work you towards an agreement. It is almost always preferable to try mediation. It is substantially cheaper than going to court and should it fail, it shows the courts that at least they tried to avoid going to court.

                There is open mediation and closed mediation. Open mediation means the mediators findings could be used in court. In closed mediation it means their findings may not be used in court. Most mediators don't like open mediation. Also, both parties must consent to mediation being open.

                But make an offer to settle. Offer to mediate. If you make reasonable offers and offer to mediate your chances of being awards costs (some of your legal fees) increase if you are successful in court.

                Comment


                • #9
                  I'd be happy to settle. I just googled it to try to understand better. I was looking for a form so I have some kind of guideline of what it's supposed to look like. Is this the right form? http://www.ontariocourtforms.on.ca/f...E_49A_0707.pdf
                  It says courts of justice act so I'm not sure. And then I just serve it the same way as my response right? I sent it by registered mail so I could have a signature but the lawyer at FLIC said you can mail it them wait 5 days and fill out an affadavit of service. Is this the same? Also the other stuff I have to file at the courthouse. Do I file my offer to settle at the courthouse too?

                  Comment


                  • #10
                    He wants to stop paying support for all 3 kids and he wants me to pay him pay spousal support retroactive for the last 7 years.
                    Without blameworthy conduct, arrears in support (child or spousal) do not go back seven years.

                    His reason for wanting me to repay the spousal support is listed as I remarried and I have been consitently working.
                    That may be grounds for terminating it now. It is unlikely to affect payments made.

                    The second part of the question is how far does retroactive usually go?
                    There are somewhat complicated calculations that are involved in arrears in child support. Considerations that come in are:
                    1 - Justified reason for recipient not to have brought motion sooner;
                    2 - Blameworthy conduct on the part of the payor spouse;
                    3 - Effect on the child during years of lesser support; and
                    4 - Effect of arrears on payor, particularly in light of new family.

                    Rule of thumb is three years will be the farthest the court will look back.

                    So SS should have likely been terminated a long time ago and definitely when you got married and another individuals stepped into the role of providing for you (it sounds like you were 30'ish at that time).
                    Spousal support for parents with young children becomes less cut and dry, as their obligation to raise their children overrides the onus on them to become self supporting sooner.

                    Comment


                    • #11
                      Thank you OrleansLawyer.

                      Comment


                      • #12
                        Originally posted by momliz View Post

                        Maybe the part that's hard for someone who hasn't been there to understand is that when it is an abusive person we're dealing with the abuse doesn't end even after you leave the marriage. Recently he has been using his new GF to intimidate me (I thought she was going to beat me up when she served me the papers). They send me nasty messages on Facebook but I don't want to block them because if I do I won't be able to see their interactions with my kids on FB. I just try to avoid him as much as possible. Even 12 years later he still terrifies me.
                        Momliz, I understand. I was in an abusive marriage for over 40 years, and was physically assaulted, along with the emotional and psychological abuse. It is very true that the abuse does not end even after the abused spouse leaves the marriage. I'm experiencing his ongoing need for control in many ways. It's sick and malicious.

                        I would think long and hard about mediation if he still terrifies you. Mediation is good if both parties are basically on the same wave-length and pretty much equal in emotional strengths. Any compromise made out of fear is almost certain to be deficient and disappointing in the long term.

                        Comment


                        • #13
                          Thanks caranna. I'm at the point I would give him just about anything he asks for just to make the intimidation stop. In the last few days since I originally posted he has started using my kids to hurt me. I just want everything to settle down so I can have some chance of seeing my boys again. Up until now I had been deceived into thinking my oldest boy couldn't visit because he was so busy with his new job. He has since admitted that he just doesn't want to see me. The younger boy I was giving him a little time because he was just settling in. He has also recently let me know he doesn't WANT to see me either. I feel very foolish. I just believed they were busy. Now it's clear they don't want me in their lives anymore. I feel like my heart has been ripped out of my chest. I'm probably not in the right frame of mind to be making big decisions. I was going to try to figure this all out on my own. It is now very clear that I can't. I really can't afford a lawyer but I make too much for legal aid. I went ahead and made an appointment to see a lawyer. I'm just hoping I can hold everything together until this nightmare is over.

                          Comment


                          • #14
                            I don't think your ex has just started using your sons to hurt you...he's been using this tactic for a long time. Under your ex's influence they are also well on their way to becoming abusive men themselves, and they are not realizing this, but they are using you for practice. I don't mean to upset you, momliz. I was in denial for decades and now realize how deceptive and manipulating an abusive spouse/ex can be.

                            I sincerely hope the lawyer you've arranged to see is a family lawyer who is knowledgeable and understanding regarding abused women. There are so many
                            points to consider in hiring a lawyer, but these attributes will go very far in ensuring that you receive good legal advice in your situation.

                            Comment


                            • #15
                              Momliz, if there's anything you would like me to try and help you with, please feel free to PM me. I truly care about you and relate to a lot of stuff that you're going through.

                              Comment

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