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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 01-02-2011, 01:07 PM
lorlaman lorlaman is offline
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Default Application For Spousal?

Happy new year to all...

Here I go...sorry for the long story.

My ex was suffering from side effects of the drug Dexamphetamine she took for 5 years for weight loss, and refused to get off the drugs because she was addicted. She was moody, paranoid (you have no idea) and believed I was trying to poison her since food did not taste right. She assaulted me in Jan 2010, she called 911 thinking that I would be arrested for protecting myself, the police arrived and she gave her statement, the kids gave theirs and I gave mine. She admitted to the assault and they charged her. While away for 3 months unable to come home and ordered to stay away from me, she did not work, and I paid for all her accommodations and legals.

She made a deal with the courts where she weaned off the drugs and they dropped the charges. Once cleared of the charges and a peace bond was issued, she returned home May 2010. We (the kids and I) believed and tried very hard to keep the family together and put the past behind us, but she was bitter and wanted no part of it trying to make home life miserable for all of us. She then assaulted my older daughter July 2010, police did nothing but the incident was documented.

Then, in October of 2010, she assaulted me again and I had had enough. Since she was no longer on the drugs, I felt that either there were long term effects from the drugs, or she simply wanted out of the relationship because of mid life crisis. Regardless, my younger daughter called 911 and she was arrested again and out of the house. I had defacto custody and this time, I paid nothing for her and even took her off all benefits and any support I used to give her. She took to cleaning houses for cash ($25/hr) and lives on her credit cards. She lives in a basement apartment 10 minutes from us, our house put up for sale in Oct 2010 one week before the assault.

During the two assaults, I was left with the house and everything attached to it becoming the mom and dad overnight and having to keep the place in order for myself and my two girls aged 12 and 14 and maintain going to work 1 hour drive each way. We live in the country and the kids get bussed to school. I leave for work at 6am and return at 4:40pm. We have a huge mortgage ($325k), huge taxes ($7,100) and huge hydro bills.

She did not work during our 26 year common law relationship and only had jobs that lasted very short periods. Now my lawyer wants me to go see him because she has put in an "application", I assume is for spousal support.

I have many questions and not sure if my lawyer is really on the ball;

1. I make $90K year and need to know what my spousal payments will more than likely be. My lawyer says about $2,000 a month! That is about half of my monthly income. I can barely afford my bills right now without the SS.

2. Should she not pay me child support? She chased access for the kids but has not exercised it and has little if any contact with the kids. The kids do not want to see her and I have left access completely up to their wishes considering their ages.

3. Her mother passed away a week before Christmas and I would expect she will receive some inheritance since her mother owned a $400,000 house which will probably be split 4 ways between her and her two brothers and one sister. Will the court take this into consideration?

4. She works for cash and her income cannot be verified, how will the court address this, how should I address this?

5. How long will I have to pay SS, she could have at least improved her work skills by taking courses if she did not want to work. Since the kids are in school daily from 9 till 3:30, I am maintaining a job while they are in school, why could she not have done the same?

6. I could have retired 2 years ago since I have been with the same company for 31+ years and have a pension. I didn't retire because we could not afford it and I hoped she would get a job and I retire and took on a part time job. What would happen if I retired now and reduced my income to about $35,000? Am I obligated to work indefinitely because I have to pay her spousal? Am I allowed to retire ever?

Please offer any advice you can from your experiences.

best regards...
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Old 01-02-2011, 03:50 PM
Mess Mess is offline
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You need a better lawyer, this one cannot possibly be experienced with divorce cases. Divorcemate software on it's own would give you a much different SS amount.

You have custody of the children and every reason to keep it. WITH children SS is calculated on your NDI after taxes and expenses, and after CS is paid. Since your ex has minimal income then she will pay minimimal CS.

She should be imputed an income based on at least minimum wage, but you should shoot for her $25/hour rate for cleaning. Allow expenses since she is self-employed and she will probably claim 30-35 hours. Even so 35-40k is reasonable to impute. Then subtract what she should pay in CS from SS payments by you. Your base SS should bring her up to 45% of your AFTER tax and expense Net Disposable Income. Frankly, after you pay taxes on 90k I would argue she is already earning or capable of earning 40k so tell her to shove it. The $2000 per month your lawyer is suggesting is ridiculous, fire him.

Your ex's inheritence is hers, don't waste time and money arguing over that. Focus on her income, she cleans houses, get any and all documentation you can, for example print out Craiglist ads that show how much she is/could be charging. Make a logical argument with some facts to back you up. She cannot just not work since she has been working, and you should not be paying SS on a 90k income assuming she is earning $0, especially if you are supporting the children.
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Old 01-02-2011, 03:57 PM
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The inheritance DOES speak to her need though, so I think it could be relevant.
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Old 01-02-2011, 04:02 PM
Mess Mess is offline
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Federal Spousal Support Guidelines
Quote:
3.3.4 The with child support formula

In cases where there are dependent children, the with child support formula applies. The distinctive treatment of marriages with dependent children and concurrent child support obligations is justified by both theoretical and practical considerations and is reflected in current case law.
On the theoretical front, marriages with dependent children raise strong compensatory claims based on the economic disadvantages flowing from assumption of primary responsibility for child care, not only during the marriage, but also after separation. We have identified this aspect of the compensatory principle as it operates in cases involving dependent children as the parental partnership principle, and have drawn on this concept in structuring the with child support formula. For marriages with dependent children, length of marriage is not the most important determinant of support outcomes as compared to post-separation child-care responsibilities.
On the practical front, child support must be calculated first and given priority over spousal support. As well, the differential tax treatment of child and spousal support must be taken into account, complicating the calculations. The with child support formula thus works with computer software calculations of net disposable incomes
Under the basic with child support formula:
  • Spousal support is an amount that will leave the recipient spouse with between 40 and 46 percent of the spouses’ net incomes after child support has been taken out. (We refer to the spouses’ net income after child support has been taken out as Individual Net Disposable Income or INDI).
  • The approach to duration under this formula is more complex and flexible than under the without child support formula; orders are initially indefinite in form (duration not specified) but the formula also establishes durational ranges which are intended to structure the process of review and variation and which limit the cumulative duration of awards under this formula. These durational limits rely upon both length of marriage and the ages of the children.
The with child support formula is really a cluster of formulas dealing with different custodial arrangements. Shared and split custody situations require slight variations in the computation of individual net disposable income, as the backing out of child support obligations is a bit more complicated. There is also a different, hybrid formula for cases where spousal support is paid by the custodial parent. Under this formula, the spouses’ Guidelines incomes are reduced by the grossed-up amount of child support (actual or notional) and then the without child support formula is applied to determine amount and duration. Finally, there is one more hybrid formula for those spousal support cases where the child support for adult children is determined under section 3(2)(b) of the Child Support Guidelines.
The with child support formula is discussed in detail in Chapter 8.
Read over the guidelines. The guidelines are used by Divorcemate and similar software and based on the trend of recent case law, although they are not manditory they are very commonly applied. Understand what we're talking about here, and then specificly ask your lawyer how he arrived at the $2000 figure, if his calculations were done using the guidelines, if they were done using the With Child Support calculations, and print out at least the section I've quoted and have it at hand. Honestly I can't believe that was a divorce lawyer.
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Old 01-02-2011, 07:58 PM
lorlaman lorlaman is offline
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Hey Mess and Dadtotheend, I appreciate your help immensely!
My lawyer is a family and minor criminal lawyer. The 2,000 he quoted was just off the top of his head, no formulas or anything.

I read over quite a bit of the Federal Spousal Support Guidelines and it looks promising in my favour what I could understand anyway. I really appreciate the tips on checking Craigslist and so on. I have monitored the local community paper where her ad has run and kept track of it by taking the entire page.

Do the courts ever take into consideration the causes of the spousal breakdown?
  #6  
Old 01-02-2011, 09:29 PM
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Quote:
Originally Posted by lorlaman View Post
Do the courts ever take into consideration the causes of the spousal breakdown?
Nope, doesn't matter.
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Old 01-03-2011, 09:42 AM
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Quote:
Originally Posted by lorlaman View Post
Do the courts ever take into consideration the causes of the spousal breakdown?
Nope.

(rant)

The sad fact is that it's pretty much black-and-white and based on formulae, tables, and history.

My situation is pretty close to your own and I am fighting the fight of my life right now just to keep my house. Both children live with me 100% of the time and they have visited her only twice in 2 years (I paid 100% of the travel costs both times).

My ex moved 3 provinces away, lives in a house her parents bought her (at first she was living with them, at 52 years old (!)), drives a car her parents bought her, and refuses to work beyond getting, then quitting, part-time, min-wage jobs. She hasn't paid a single nickel in CS or helped at all with the childrens' GINORMOUS medical/dental expenses, but is happily using her lawyer (yes, you guessed it: funded by her parents) to "negotiate" a change to our SA... She wants more SS, and for longer. Oh, and more of my pension (she's already getting $150K).

I had saved up about $16K to pay for oral/facial (maxilliary) surgery and braces my son needs, but that's gone to FRO and lawyers. I am starting to sell what few personal belongings I have left (I forgot to mention that she took the entire contents of the house with her when her family came out and helped her drive a big U-Haul full of everything I had bought in 16 years of marriage back to SK) to cover mounting legal fees.

The (sad) fact is that NONE of that matters. Some dusty old book somewhere says she's "entitled" to SS despite the fact that I am the sole parent and just getting by while trying to give my kids the best possible shot at a decent future. In essence, the law says that she can take money from them.

Now, I understand that in normal circumstances, this is so that children can enjoy a similar standard of living in both houses. I get that, and I support that notion. The reality for me, though, is that they've spent a grand total of 4 weeks in her house in 2 years. That's it, that's all. Again, we're talking about a house her parents bought and that is full of MY furniture... the standard of living is already equal, if not lopsided, and they spend NO time there.

This doesn't matter either.

(/rant)

All we can do, Brother, is suck it up and remind ourselves that every day above ground is a good day.

Oh, and we can cut loose on this forum when we need to

I have another week off work (damned government employees and their holidays!) and so had the pleasure of making pancakes for the kids this morning, spending an hour or so with them, and seeing them out the door to school. What an awesome life I have... I wouldn't trade this for anything.

Perspective?

Cheers!

Gary

Last edited by Gary M; 01-03-2011 at 09:45 AM.
  #8  
Old 01-03-2011, 10:52 AM
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Quote:
Originally Posted by Gary M View Post
I have another week off work (damned government employees and their holidays!) and so had the pleasure of making pancakes for the kids this morning, spending an hour or so with them, and seeing them out the door to school. What an awesome life I have... I wouldn't trade this for anything.
Perspective?

What a great take in the face of a greedy ex who has the benefit of her parents' support, who has moved very away from her children and who continues to litigate to pursue SS, pays no CS and when she has other resources to lean on.

That you call your life awesome in spite of all the troubles that are being created for you is a testament to your love of your children.

Last edited by dadtotheend; 01-03-2011 at 11:32 AM.
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Old 01-03-2011, 11:27 AM
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Quote:
Originally Posted by Gary M View Post
I have another week off work (damned government employees and their holidays!) and so had the pleasure of making pancakes for the kids this morning, spending an hour or so with them, and seeing them out the door to school. What an awesome life I have... I wouldn't trade this for anything.

Perspective?

Cheers!

Gary
:clapping:
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Old 01-03-2011, 04:36 PM
lorlaman lorlaman is offline
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Quote:
Originally Posted by Mess View Post

You have custody of the children and every reason to keep it. WITH children SS is calculated on your NDI after taxes and expenses, and after CS is paid. Since your ex has minimal income then she will pay minimimal CS.

She should be imputed an income based on at least minimum wage, but you should shoot for her $25/hour rate for cleaning. Allow expenses since she is self-employed and she will probably claim 30-35 hours. Even so 35-40k is reasonable to impute. Then subtract what she should pay in CS from SS payments by you. Your base SS should bring her up to 45% of your AFTER tax and expense Net Disposable Income. Frankly, after you pay taxes on 90k I would argue she is already earning or capable of earning 40k so tell her to shove it. The $2000 per month your lawyer is suggesting is ridiculous, fire him.
. She cannot just not work since she has been working, and you should not be paying SS on a 90k income assuming she is earning $0, especially if you are supporting the children.
So now I am confused;
Gary M says that he has to pay SS since his wife doesn't work and refuses to and he receives no CS. He needs to have her live at the same level he is at and hence the SS.

My ex (common law) lives in a ratty basement apartment and I live in a 2700 sq ft bungalow in the country. We have yet to go to court and she has just I assume, applied for spousal which is why my lawyer wants me to see him. We are hardly equal in this respect.
Mess responded saying that after taxes and so on and imputing her possible income, I should tell her to stick it which I would love to do.

Why such a vast contrast?
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