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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 01-30-2014, 03:06 AM
rainman rainman is offline
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Default Criteria For Determing entitlement to SS

I just wanted to lay out my arguments to prove ex is not entitled to spousal support. I'm curious to hear what you all think.

No economic disadvantage to spouse arising from the marriage breakdown. We were very poor and just months before our separation we had to file for bankruptcy. My position is that how could she have experienced economic disadvantage when before the separation we were about as low as we could get? She only had UP to go.

Standard of living - Ex actually has a higher standard of living now then she did when were married. During our entire 15 year marriage we could not afford to take a vacation, however since our separation and divorce my ex takes an annual vacation to tropical destinations. She can afford those vacations now never could during our marriage.

Need - She has no need because if she did, she wouldn't be spending her money on expensive vacations.

Has proven that she is self-sufficient as she has been able to support herself without my help for the past 8 years. Again, it's not even like she is just getting by, she actually has enough disposable income to take expensive vacations.

Role that each parent played in child rearing. Although I worked and ex did not (refused to work despite dire financial situation ) I was heavily involved in the raising of our child. I bathed him just as much as my ex, I attended every single doctor appointment etc. I was also very involved in household chores; if ex washed the dishes, I dried them. It's my position that household and child rearing duties were very equal between us.

She did not sacrifice a career or education as a result of the marriage or child rearing. As a matter of fact, she was unemployed before we got married, and also prior to the marriage she signed up for university and quit after 1 month. Also, during the marriage she only had 4 years home with our child. My position is how can someone sacrifice something that they made a conscious decision not to do? After that and for the next 11 years our child was in school and didn't require child rearing during the 7 hours a day that he was in school. She had years to seek employment or an education without the burden of child rearing as she was home all day when our child was in school.

Ex did not sacrifice anything in order to advance my career. Again, she was home all day and could have easily gotten a job or some sort of education. With our child in school all day she had ample opportunity yet, as was a point of contention due to our poor financial situation, she simply chose not to as was the care before our marriage.

Anyways, these are my arguments and I'd appreciate any feed back and if anyone thinks of anything I've forgotten as far as what the Judge looks at in determining entitlement and/or rewarding spousal support?

Remember, ex also waited for years before she even pursued her claim to spousal support and also was left with 20k in assets, left with no debt and will get half my pension.

Thanks
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  #2  
Old 01-30-2014, 07:50 AM
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arabian arabian is offline
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Rainman - if you'd like I could counter-argue your points to possibly give you an idea of how she might respond.

To refresh my memory - is your wife represented by counsel?
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Old 01-30-2014, 07:55 AM
FightingForFamily FightingForFamily is offline
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It's up to HER to prove entitlement. Your position should be simple: No spousal support.

However you should be realistic. She will not be able to obtain gainful employment after 15 years out of the work force very easily. Especially, as you said, she did not complete university. She did rear the children, and she did look after the home presumably.

You stayed with her and supported her staying home for 11 years. You can't suck and blow at the same time and now claim she did against your wishes for ELEVEN years when you were fine for it that whole time.

20k in assets sounds like a lot but it's less than 1 year's worth of minimum wage to show for 15 years of her life.

You say that now she has a higher standard of living, and that now she has been able to take vacations regularly. Why is this? If she has a new partner who is doing this with her, it's not really HER that is self sufficient, is it?

On the other hand, if another new spouse is supporting her, then there is little reason for you, her former spouse, to be on the hook for very much. If, as you say, you have already been separated for 8 years, and she has not sought it until now, it is far less likely that she will be able to blame her current problems on what happened more than 10 years ago.
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Old 01-30-2014, 08:09 AM
FightingForFamily FightingForFamily is offline
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Quote:
Originally Posted by rainman View Post
No economic disadvantage to spouse arising from the marriage breakdown. We were very poor and just months before our separation we had to file for bankruptcy. My position is that how could she have experienced economic disadvantage when before the separation we were about as low as we could get? She only had UP to go.
Your marriage bankrupted her. Ergo, it's partly your fault that she had to declare bankruptcy. Ergo, she suffered extreme financial disadvantage as a result of the marriage. Not necessarily as a result of its breakdown.

Quote:
Standard of living - Ex actually has a higher standard of living now then she did when were married. During our entire 15 year marriage we could not afford to take a vacation, however since our separation and divorce my ex takes an annual vacation to tropical destinations. She can afford those vacations now never could during our marriage.
Do you have any proof that she is paying for these vacations? What is her annual salary? Does she get them as prizes in contest, are they paid for by her family, is she taking them with a new partner?

Have you done the Standard of Living calculation to show proof that her SoL really is higher? Look into the calculation of these ratios before you make claims like this.

Quote:
Need - She has no need because if she did, she wouldn't be spending her money on expensive vacations.
Do you have any proof that she is paying for these vacations herself? Also, everyone is entitled to vacation. You need to look at more than just this. What kind of home she has, what car she drives, what is her annual income. She needs to produce a detailed financial statement with a budget and indicate where and why she has need.

Quote:
Has proven that she is self-sufficient as she has been able to support herself without my help for the past 8 years. Again, it's not even like she is just getting by, she actually has enough disposable income to take expensive vacations.
Does she work? How has she supported herself? What is her annual income? Stop hanging onto vacations, they are not relevant to bring up in every single paragraph!

Quote:
Role that each parent played in child rearing. Although I worked and ex did not (refused to work despite dire financial situation ) I was heavily involved in the raising of our child. I bathed him just as much as my ex, I attended every single doctor appointment etc. I was also very involved in household chores; if ex washed the dishes, I dried them. It's my position that household and child rearing duties were very equal between us.
You were involved, but you were not as involved as she was, because you were out of the home for 8-10 hours per day.

Quote:
She did not sacrifice a career or education as a result of the marriage or child rearing. As a matter of fact, she was unemployed before we got married, and also prior to the marriage she signed up for university and quit after 1 month. Also, during the marriage she only had 4 years home with our child.
Why did she quit university? She stayed home for 4 years, this equates to more than $100,000 in lost earnings even at minimum wage. Not even talking about the other 11 years you were together. If she never married or had kids, what is the likelihood she would have been able to earn more? I'd say high, on the balance of probabilities.

Quote:
My position is how can someone sacrifice something that they made a conscious decision not to do? After that and for the next 11 years our child was in school and didn't require child rearing during the 7 hours a day that he was in school. She had years to seek employment or an education without the burden of child rearing as she was home all day when our child was in school.
But you stayed with her for 11 years while she did this. You financially supported her. If you disagreed and tried to persuade her to get more education or seek employment throughout this period, you must be able to demonstrate that with proof. At the very least, a hundred pages of old e-mails where you fought about this very issue and how her lack of motivation to help financially support herself led to the breakdown of the marriage. Otherwise it's pointless.

Quote:
Ex did not sacrifice anything in order to advance my career. Again, she was home all day and could have easily gotten a job or some sort of education. With our child in school all day she had ample opportunity yet, as was a point of contention due to our poor financial situation, she simply chose not to as was the care before our marriage.
She sacrificed between 4 and 15 years of earning potential. You said so yourself.

Quote:
Remember, ex also waited for years before she even pursued her claim to spousal support and also was left with 20k in assets, left with no debt and will get half my pension.
The other issues are related to equalization of NFP and not directly related to spousal support. Sometimes if they are a large amount they can be a consideration. 20k is not a large amount. My ex was awarded more than $70k and still got spousal support for half the length of the marriage. I was only married for 6 years. My ex was only out of the workforce for 2 years. My ex had 2 university degrees.

I don't envy your situation. If she hasn't sought it for many years your chances are better than most, so that's something.

Last edited by FightingForFamily; 01-30-2014 at 08:13 AM.
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  #5  
Old 01-30-2014, 08:18 AM
FightingForFamily FightingForFamily is offline
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Has your ex served you with a court application in this regard? With a completed 13.1 financial statement?

Honestly, if she is just fishing, or her lawyer is sending annoying letters, it's really not worth getting too worked up about.
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Old 01-30-2014, 08:30 AM
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What will first be examined is if the marriage was "traditional" or "non-traditional." It seems to me that your ex and you had a traditional marriage as she stayed home to look after kids while you worked. You may have been a very involved parent when you were in the home after work, however, by mutual consent it was decided that she forego a career and stay out of the work force. If you did not consent you could have separated. By staying in the marriage you accepted the situation.

Her being primary care-giver of the children enabled you to focus on your work and progress in your career? [You might have to prove that you did not make any career advances during the time of your marriage]

I would be careful about the bankruptcy reference in your argument. You both entered into bankruptcy and that put you in a better position to pay support as the bankruptcy would have wiped out all of your debt.

Vacations - you don't know or who is financing them.

Strong points on your side is if you both had independent legal advice at the time of separation if an agreement was negotiated. You should carefully outline dates.

A very important thing is the time she took to request SS. You might want to outline each and every time the two of you were in court and emphasize that SS was never requested. Case law does exist for people requesting SS after a lengthy time but in both the cases I read the recipient showed a need due to medical issues and/or received no ILA at the time the separation agreement was decided. You could reference some cases.

One question I have is regarding your financial situation.

Are you not required to exchange tax information each year for the determination of child support? If you did that then she would have known your financial situation for the past 8 yrs would she not? Therefore, the big question (which she will most certainly have to elaborate on) is why did she wait 8 yrs to request SS? Unless she can show a compelling reason (lawyer ate her files, she was incarcerated) then she probably has no chance in succeeding in my opinion.
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Old 01-30-2014, 08:38 AM
Mess Mess is offline
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I was going to post basicly the same things FightingForFamily and Arabian posted, so I'm just going to add my agreement.
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Old 02-02-2014, 04:40 AM
rainman rainman is offline
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HI Arabian, sure, I am open to hearing perspectives. I welcome it actually because I think it's important for me to be open-minded and realistic.

To answer your question, my ex is represented by legal aid.
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