Intentionally under employed

[Better off]

Hi, I'm new here and am 5 months into, what's turning out to be, a nasty divorce. My husband was leading a double life, and when I started getting suspicious and looked through his computer, then confronted him, it all went down from there.

We have been in mediation for 2 months (4 sessions of 3 hours), and I thought we had a settlement. He has now reneged on that and is telling me he is entitled to spousal support from me for the rest of my life and now plans to take me to court. I have a good paying government job with benefits; he is self employed. His income tax returns clearly show that his 'business' has not been successful and he admits out loud that he has been "taking it easy" the last couple of years.

My lawyer tells me the judge will impute his salary as he is a healthy, 45 year old, skilled man, however, he's waving around medical notes and saying he can't work because he had a concussion almost 2 years ago and was 'depressed'... something I did not know about.

I'm still in shock that this is the person I've been with since I was 16 years old! I had no idea he could become this way. We have 2 children and I'm just sick that the mediation appears to have failed and we may spend tons of money in court.

Any advice, suggestions, experience would be really appreciated. Thanks!

 

[arabian]

Time to wake up and smell the coffee. No he is not the same person you were with when you were 16. Neither are you. You have a lot of work ahead of you.

First thing you have to do is get tons of information. He is self-employed and probably claimed little every year on his tax returns. You went along with it because you never, in your wildest dreams, though it could come back to bite you in the ass.

It has.

A judge will impute his salary but it isn't as easy as someone who is a wage earner as you will not be going by line 150 of his tax return. You need his complete financial disclosure. This includes all accounts payables/receivables, bank statements, along with all of his financial statements. Is he incorporated or operating as a sole proprietorship? Is he in a GST exempt business?

You will have to become an expert on his business finances. Without the documentation you will be hooped.

Regarding his stunt/threat about his physical situation. He will have to present substantial evidence that he is incapable of working. This isn't as easy as he thinks. The first thing that will be required of him to substantiate his claim would be for him to apply for CPP disability. Don't think for one minute that he will be deemed incapable of working with merely one doctor's note. If you go to trial his medical "evidence" will have to stand up to much scrutiny. Lots of people are clinically depressed and can still be fully employed.

This is when you hope that he gets a decent lawyer who will give him proper legal advice. A lousy lawyer will tell him what he wants to hear and before you know it all of your assets will be sucked into a void.

Don't waste any more money on mediation. File the papers already and get rid of this loser. Of course make sure you make offers to settle throughout your ensuing legal nightmare.

Read lots and lots of case law. Here is a recent ruling which is relevant to your situation: Chase v. Chase [2013 ABCA 83] - no medical evidence.

Type CanLII [your province] into your search engine and then enter the case 2013 ABCA 83 and start reading.

Information and knowledge is power.

 

[stripes]

Just the fact that he's waving medical notes saying he's depressed does not mean he is entitled to get spousal support from you. If he has skills, he's only 45, and he's physically healthy, I don't see how he could claim spousal support on the basis of need. (Depression doesn't necessarily mean you can't work - lots of clinically depressed people support themselves).

The other way he could make a claim for spousal support is on the basis of compensation - he would need to show that he sacrificed his own economic interests in order to favour yours (the classic example is one party who drops out of university and goes to work at Wal-Mart to put the other party through medical school). The onus is on him to *prove* this. There is no default assumption that he will get spousal support just because you earn more than he does.

I think your lawyer is right, in court he would be imputed an income of at the very least full-time minimum wage. However, the costs of a court battle over this might be large. If this is the only issue holding up your divorce order, would you consider making a minimal spousal support offer - for instance, $200/month for two years in exchange for a clause in your divorce judgment specifying that neither of you will seek any further support from the other? This might give your lazy ex the symbolic victory he wants without tying you up in court battles. You could look at it as money well spent to get rid of him.

If on the other hand, there are lots of other issues outstanding from mediation and it looks like you're headed for court no matter what, you might as well toss the spousal support issue in as well and fight the whole thing out.

 

[arabian]

The problem with admitting to any amount of SS is that you run the risk of it being increased in the future. It's kind of like leaving the door open a crack.

If you do make an offer of SS, consider doing a lump sum (chronically unemployed might find this attractive as they feel like they've won the lottery) and hopefully he'll go away and crawl under a rock....

 

[Qrious]

The problem with admitting to any amount of SS is that you run the risk of it being increased in the future. It's kind of like leaving the door open a crack.

If you do make an offer of SS, consider doing a lump sum (chronically unemployed might find this attractive as they feel like they've won the lottery) and hopefully he'll go away and crawl under a rock....

... and I think Mess might tell you that if you are going to make any offer of SS, do it WITHOUT PREJUDICE." This way, your offer can't make it to court.

Better Off - Welcome. I am sorry for the road you may have ahead of you. Do you have children too? If you have settled all other issues but SS, that may be a good sign that you will reach resolve sooner rather than later.

PS - take all the advice you can from Arabian. She has been through hell and back with a self-employed X.

 

[Better off]

Thank you all for your excellent responses! It appears we have settled most things like shared custody, parenting plan (kids are 9&11), splitting our home, etc. Issue is he has a lot of debt that he ran up without my knowledge and I’m expected to pay half of it.

In our last mediation, I actually offered up a lump sum spousal payment of $29,000 for him to go away and never make a child support or spousal support claim against me ever!! He said he would take it in mediation, but when it came in writing, he said NO WAY and said he could get at least $100,000 spousal support. It was 'without prejudice' so I guess that can't be used in court. I think he has a really sleezy lawyer who wants to make a lot of money off him by getting him into court. It’s sickening really.

I have been on the CanLII website and printed a bunch of stuff for him to read, basically explaining his salary will be imputed, but he rejected that and is convinced he’s going to hit the lottery with my government job and benefits for life. He is a total loser and that is why I called myself ‘Better off’. I know I am. I’m still in a state of shock though because I can’t believe the person I once knew and loved and had kids with, could become like this. It’s like a really bad movie!

 

[FB_]

Thank you all for your excellent responses! It appears we have settled most things like shared custody, parenting plan (kids are 9&11), splitting our home, etc. Issue is he has a lot of debt that he ran up without my knowledge and I’m expected to pay half of it.

In our last mediation, I actually offered up a lump sum spousal payment of $29,000 for him to go away and never make a child support or spousal support claim against me ever!! He said he would take it in mediation, but when it came in writing, he said NO WAY and said he could get at least $100,000 spousal support. It was 'without prejudice' so I guess that can't be used in court. I think he has a really sleezy lawyer who wants to make a lot of money off him by getting him into court. It’s sickening really.

I have been on the CanLII website and printed a bunch of stuff for him to read, basically explaining his salary will be imputed, but he rejected that and is convinced he’s going to hit the lottery with my government job and benefits for life. He is a total loser and that is why I called myself ‘Better off’. I know I am. I’m still in a state of shock though because I can’t believe the person I once knew and loved and had kids with, could become like this. It’s like a really bad movie!

Just be aware that you cannot sign away a claim to child support. It's the right of the children not you.

I personally would stop educating him. Provide him a very clear and written offer to settle. If you need help with an offer to settle many here will be able to assist you.

 

[Tayken]

Hi, I'm new here and am 5 months into, what's turning out to be, a nasty divorce.

Are children involved.

My husband was leading a double life, and when I started getting suspicious and looked through his computer, then confronted him, it all went down from there.

It is irrelivant. As the Supreme Court of Canada demonstrated again last week... The courts are concerned with the ethics of the law and not the morals of society.

In fact, having a "double" life is not even considered. So, you can lament about it here... I wouldn't bring forward any of that evidence. In fact, it will put you in a very negative light.

We have been in mediation for 2 months (4 sessions of 3 hours), and I thought we had a settlement.

Untill it is signed by both parties... You have achieved nothing.

Which the other party has every right to do under the law.

I have a good paying government job with benefits; he is self employed. His income tax returns clearly show that his 'business' has not been successful and he admits out loud that he has been "taking it easy" the last couple of years.

Careful with trying to rely upon hearsay. The court won't care about what he said to you as this is "hearsay". He could say you said you would get the warhead and hold the world ransom for one hundred billion dollars... Do you see why hearsay is not reliable evidence... It gets worse if you try ot have every one of your biased friends and family members swear the same hearsay.

My lawyer tells me the judge will impute his salary as he is a healthy, 45 year old, skilled man, however, he's waving around medical notes and saying he can't work because he had a concussion almost 2 years ago and was 'depressed'... something I did not know about.

Your lawyer is somewhat correct but, impugnment will be at a very low rate. You have to sort the pennies from the pounds. You should offer up a one time settlement for SS and be done with it. 30,000 one time SS payment for the full release is always a better way to spend the money. To battle it out in court will cost you about 50-60K generally in legal fees. You could lose.

If your lawyer is suggesting imputing, then make an offer based on the value that is reasonable. Doesn't sound like you are getting out of this without paying something in SS.

I'm still in shock that this is the person I've been with since I was 16 years old! I had no idea he could become this way. We have 2 children and I'm just sick that the mediation appears to have failed and we may spend tons of money in court.

Interesting that this is the first mention of the children. You do realize that on 50-50 if you make more money (as you state the claim for SS) that you will owe off-set child support too.

Mediation often fails... Arbitration is better money spent. In fact, I don't recommend anyone ever go to mediation.

Any advice, suggestions, experience would be really appreciated. Thanks!

Get him to agree to arbitration and to move matter to arbitration. In the mean time... Make offers to settle in accordance with Rule 18 of the family law rules OFTEN!

Good Luck!
Tayken

 

[Tayken]

It was 'without prejudice' so I guess that can't be used in court. I think he has a really sleezy lawyer who wants to make a lot of money off him by getting him into court. It’s sickening really.

No it can't be used. It is part of an offer to settle discussion.

I would make an offer to settle setting it to 30,000, normal equalization of all the assets and debts and that you pay the off set child support in accordance to the federal child support guide lines and it to be adjusted yearly.

The lawyer on the other side is going to run your costs. Be very mindful of this. I would make one last offer to settle on the matter and then end communications between the lawyers to save costs.

Send the offer to settle (make sure it is very reasonable) and with a notice you are done and if this is not acceptable for them to provide the dates they are available to hear a motion on the matter. (Or in the alternative drop the court date request and just ignore them and force them to file a motion and put their money where their mouth is.)

I trust that they are paying for their lawyer too (no LOA certificate giving the other party a "free/reduced rated" legal services)? Usually the legal bill will shock most people into better resolution mechanisms and to be reasonable.

Good Luck!
Tayken

 

[sioux]

Tayken...tried to send you a PM, box is full

 

[Serene]

Tayken could you elaborate on your advice not to use the double life issue? Why do you think it will cast the wife/mother in a negative light? I ask because this is relevant to our case too! As the mother is now trying to say and prove dad was cheating on her during marriage. Not even sure why this would be relevant in our case as parties have been divorced for a few years already...

 

[Better off]

Thanks Tayken and everyone,

He is paying a lawyer and yes, the legal bill for the lawyer and mediation is shocking for sure!! A part of me thinks he’s bluffing, threatening to reject the mediation offer and go to arbitration. He told me a week ago that he wants to go to an arbitrator, then texted me 6 hours later saying he’ll take another look at the offer and get back to me with what he thinks is ‘good’… but hasn’t.

The interesting thing in our situation is he owns a triplex with 3 apartments (rental income) valued at $1M that he was given by his Dad when his Mom died 20 years ago. We were living together at the time, and I was told that I’m entitled to half the value of that property since marriage. It was appraised at $312k in 1999 and is now valued at $960k. He put that property up for sale 2 weeks ago and with all his debt, our mortgage, the capital gains tax, and real estate fees/commission, my profit from that building is NEGATIVE $10,000!!!

In addition, his dad is 94 years old and is worth over $2M. And ALL of it will go to my ex as there are no others. Yet he still is going after half my pension, spousal support and everything else he can get from me. And HE’s the one who cheated with a 27 year old, rented a secret apartment for 18 months and lied to me for who knows how long, while I trusted him and went to work every day!!!!! Sorry…. Just had to rant for a minute! I know you’ve all probably gone through the same thing. I have to get over the shock!

He’s the type of person who will drag his heels forever on this. He actually suggested in mediation 2 weeks ago that we stay married, keep living together, but date other people so we can keep the same lifestyle!!! REALLY???? The last thing I want to do is go to court. I can’t stand the thought of all that money being flushed away to the lawyers. At the same time, I don’t want to settle for crap. It’s a horrible situation.

 

[Better off]

Also, my lawyer said that arbitration is not good, and we should go straight to litigation. She said that going to arbitration means paying the person acting as the judge, plus the lawyers, whereas going straight to litigation is just paying the lawyers and court fees… Any thoughts on this?

 

[Serene]

If you are married or commonlaw he cannot sell that investment property without you signing. I person would not sign.

 

[Tayken]

Tayken could you elaborate on your advice not to use the double life issue? Why do you think it will cast the wife/mother in a negative light?

1. I am assuming the double life is an affair.
2. Canada has "no fault" divorce laws.
3. As a result of it being "no fault" the evidence of an extramarital affair is not relevant.
4. To try to "weaponise" the divorce with evidence of an extramarital affair doesn't meet the expectations that the two parties will settle matters... Just fight it out in court.
5. No where in our laws does someone get anything more for having been cheated on.
6. What two consenting adults do in their own privacy is their own business and won't get you more SS, CS or Custody and or access of the children.

I ask because this is relevant to our case too! As the mother is now trying to say and prove dad was cheating on her during marriage.

Don't even respond to the allegations beyond a blanket denial. You clearly don't have access to a lawyer if you haven't realized that an extramarital affair is of 0 value in family courts in Canada.

Not even sure why this would be relevant in our case as parties have been divorced for a few years already...

It isn't relevant. What they may be doing is trying to conflict bait you. It is often used as a smoke screen.

Good Luck!
Tayken

 

[arabian]

I was able to be divorced within 9 months through a form of binding arbitration. My ex simply swore an affidavit of adultery and that way we didn't have to wait the 1 yr. OF course we both agreed to the binding arbitration. We saved 10s of thousands of dollars by going that route.

From what information you have shared with us I would say your ex was merely doing a pre-emptive strike as he knows he has to give you 50% of the increase in value of the revenue property at the least. He also knows that his business activities will come under close scrutiny.

I wouldn't offer him a dime. Set a trial date if he won't agree to binding arbitration.

I'd let him come up with the offers as it seems to me that he has much more to lose than you do. He likely has assets that you aren't even aware of. Do gather up as much paperwork as you can.

Sorry about the other woman thing, particularly if you had sex with him during the time he was with her. Get yourself tested. Guys like this typically don't just go to one source for their entertainment.

 

[FB_]

I can tell you in my case when I started to ignore all the noise that's when things started to get settled.

I provided many offers to settle with many different options to make is seem like they had a choice in the matter and it wasn't just me "dictating" how it was going to go.

I filed for a long motion to get many of the issues resolved and then sat and waited. She finally took a long hard look at my offer to settle 6 days before the motion. It was the ground work for a our settlement.

Don't respond to useless crap. File a court application asking for what the law states you are entitled to and take it from there. If you believe the other party is entitled to spousal then offer them a fair amount. It will save you in the end.

I'm pretty had I offered my ex $10-$20k from the beginning it would not have gone to court where I spent $25k. Think of it totally as a business transaction and keep your emotions out of it.

 

[FB_]

I was able to be divorced within 9 months through a form of binding arbitration. My ex simply swore an affidavit of adultery and that way we didn't have to wait the 1 yr. OF course we both agreed to the binding arbitration. We saved 10s of thousands of dollars by going that route.

From what information you have shared with us I would say your ex was merely doing a pre-emptive strike as he knows he has to give you 50% of the increase in value of the revenue property at the least. He also knows that his business activities will come under close scrutiny.

I wouldn't offer him a dime. Set a trial date if he won't agree to binding arbitration.

I'd let him come up with the offers as it seems to me that he has much more to lose than you do. He likely has assets that you aren't even aware of. Do gather up as much paperwork as you can.

Sorry about the other woman thing, particularly if you had sex with him during the time he was with her. Get yourself tested. Guys like this typically don't just go to one source for their entertainment.

Nor do the women...I went through 1 year of std testing, once every 3 months.

 

[Tayken]

The interesting thing in our situation is he owns a triplex with 3 apartments (rental income) valued at $1M that he was given by his Dad when his Mom died 20 years ago. We were living together at the time, and I was told that I’m entitled to half the value of that property since marriage.

I would re-check that advice with another lawyer. If the estate was left to the other party under a will then, you have no claim on it at all. All he may have to produce is the last will and testimony to this fact.

Unless... He transferred the title and holdings to be in your name or jointly held. The property itself if in his name and obtained through inheritance is his property and you may have NO claim to it.

I would triple check this with GOOD RESPECTABLE LAWYERS.

In addition, his dad is 94 years old and is worth over $2M. And ALL of it will go to my ex as there are no others.

And this is relevant because? It isn't. You need to put this emotional baggage on the shelf. That is not your (or his money) and if it comes to the other party upon the death of the person in question, it is still not subject to equalization at all.

Yet he still is going after half my pension, spousal support and everything else he can get from me.

Again, you are making a "moral" argument in an "ethical" system of law. You are also talking about money he does not have access to and is not in his possession. Even if he does come into possession of it... IT is NOT subject to equalization.

And HE’s the one who cheated with a 27 year old, rented a secret apartment for 18 months and lied to me for who knows how long, while I trusted him and went to work every day!!!!!

It is all irrelevant. Tell it to your psychologist/therapist and work out that issue in therapy and not our public court systems. You are going to have to put that behind you and accept that he has every right to do all those things under the law and that it will not have any weight or impact in court.

Better to hear this from me on the internet than while a lawyer is charging you between $250-650 and hour + HST!

Sorry…. Just had to rant for a minute! I know you’ve all probably gone through the same thing. I have to get over the shock!

Others on this forum have experienced something similar and have all had to deal with and manage these feelings. The best thing you can do for yourself is seek out a cognative behaviour therapist (psychologist) who can help you handle these emotions... notice them, name them and then do "nothing" about them...

He’s the type of person who will drag his heels forever on this.

It actually pays to drag your feet, not to respond and not do anything when you know the other party will not go to court... You are warned...

He actually suggested in mediation 2 weeks ago that we stay married, keep living together, but date other people so we can keep the same lifestyle!!! REALLY????

Who cares? You are not with him any more. You need to check your personal morals at the door of the court room. Especially if you they are based on a underlying religious belief. Go out and meet someone else.

The last thing I want to do is go to court. I can’t stand the thought of all that money being flushed away to the lawyers. At the same time, I don’t want to settle for crap. It’s a horrible situation.

Life and especially family law is all about a series of calculated compromises. It doesn't mean that these compromises are going to be what you want every time... Some times you have to give up something you want to get things settled... It is easier to part with money in a settlement than take on the costs (emotional and financial) of a court proceeding.

Do you want to spend the next 2-4 years of your life... worried about "court"? Best you pay him off and move on...

Good Luck!
Tayken

 

[arabian]

I'd be taking a very close look at the books for his business. Who knows, the old geezer (94 yr old) might have co-signed something along the way.