Man did I dig myself in a hole!

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cashcow4ex

cashcow4ex

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Hello everyone,

When my ex and I split up after 9 years. I was feeling pretty upset about it because it was by my choice. So let’s say that I was really not up to fighting the fight as much as she was. We decided to go to mediation ($7000) to hammer out the separation agreement. This was going well until the topic of spousal support came up.

My ex-wife runs a home daycare and has since my son was born. We have 2 kids 9 and 5. Therefore is considered self employed. The problem was that she had not done her 2009 business taxes, so we ended up finally using her 2008 taxes to determine about spousal support. Well in 2008 we lived in the country were her daycare suffered due to lack of children. In 2009 we were in the city and it was always a full house.

So instead of using her salary at the $36,000 she made in 2009 we used the $16,000 that she made in 2008. After a lot of protesting on my part the mediator told me not to worry that the spousal support would go down the following year as we would just use the previous years T4/business tax statement to revisit the spousal support and always be a year behind.

My problem is when we sat down the next year and she used her earnings from 2009 which is what we should have used during our mediation, the computer that calculates spousal support stated that she should get $0 a month. I think had she shown up with her 2009 earnings for mediation, I would not be on the bill for spousal support for 7 to 15 years. In fact spousal support probably would have been out of the question.

Her salary 34,000 (net) + 10,464 (CS) + 3600 (SS) + 5292 (gov’t credits/breaks) = $53,356.00 (net give or take 2k)

My Salary 58,000- 18,000 (taxes) – 14,064 (CS & SS) – 792.00 (college fund) – 828.00 (mandated life insurance) = $24,316.00 (net give or take 1k)

Also the mediator asked me to get a sample layoff package from my employer stating what they would have offered me had they laid me off the day I left the house. I was then told by the mediator that that layoff sample is a marital asset and that I had to pay her half of this non-existent money. Has anyone else encountered this?

So my question is this. Should I take our agreement and throw it out and take my chances with a judge in family court? Do you think the judge would see through all the mess and realize that she in fact used a much lower salary from 2008 for negotiation purposes and that she has no intentions of changing her situation and is very content running the daycare?

Thanks for reading this post and look forward to your answers.
 
I'm no lawyer or dont have a legal background, but If i were in your position I would definately goto trial. And ask the judge to imput her income to $36,000 because it is not your fault she did not file her taxes on time.
 
"I was then told by the mediator that that layoff sample is a marital asset and that I had to pay her half of this non-existent money."

Just like her life insurance. She needs to pay out half of that money to you she would have received if she died on the day of your separation.

That mediator is playing what most of the lawyers: just creating conflict by having the parties coming up ridiculous claims so they need to use a dirtbag longer and they could siphon them longer.
 
I thought it was completly rediculous. When the mediator mentioned about owing her half I laughed and said I would quit my job, leave the country and she would never see a dime from me again.

I ended up caving a little. I gave her an additional $3,000 as hush money and the balance payable if and when I ever get layed off.
 
cashcow4ex said:
Also the mediator asked me to get a sample layoff package from my employer stating what they would have offered me had they laid me off the day I left the house. I was then told by the mediator that that layoff sample is a marital asset and that I had to pay her half of this non-existent money. Has anyone else encountered this?
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I have never heard of such a provision. It is a rediculous notion at that. To believe that she should be entitled to an amount equal of a non-existant scenario is stupid. Yes, I can see pension, because it is an amount which has a dollar value and retirement is a reasonable expectation. But the idea that she should be entitled to what amounts to a probability is assinine.

I mean, ok lets assume your ex regularly plays lotto 649. Should she have to pre-pay you an amount equal to the amount she may win if she lands a jackpot? I don't think so.
 
Hey your preaching to the choir here. But according to the mediator, the sample layoff is technically considered to be a marital asset. I have not officially looked into it as I only paid her $3,000 of it to get her to back off.

Afterall we are talking about my ex that on top of the child support and spousal support asked the mediator for $120.00 a month additional for dog support.
 
cashcow4ex said:
Hey your preaching to the choir here. But according to the mediator, the sample layoff is technically considered to be a marital asset. I have not officially looked into it as I only paid her $3,000 of it to get her to back off.

Afterall we are talking about my ex that on top of the child support and spousal support asked the mediator for $120.00 a month additional for dog support.
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:D :D :D :D
Common. dog support? You kidding right ?
 
I wish I was. One thing you need to know is her father was also coaching her during our seperation and he was a president of a large union in the city. So you can imagine his demands.
 
cashcow4ex said:
I wish I was. One thing you need to know is her father was also coaching her during our seperation and he was a president of a large union in the city. So you can imagine his demands.
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I can. At least now we know where laid of package demand come from )))
 
Does anyone know if my spousal support payment can go up if I got a promotion 2 years after we seperated? I know she is entitled to get an increase for child support. But I wonder about spousal support 2 years down the road?
 
cashcow4ex said:
Does anyone know if my spousal support payment can go up if I got a promotion 2 years after we seperated? I know she is entitled to get an increase for child support. But I wonder about spousal support 2 years down the road?
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if you do not have it in your agreement than I doubt.
 
cashcow4ex said:
Does anyone know if my spousal support payment can go up if I got a promotion 2 years after we seperated? I know she is entitled to get an increase for child support. But I wonder about spousal support 2 years down the road?
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Only if there is a clause in your court order/agreement that provides that SS may be reopened in event of changes of income....in which case that works both ways. Meaning, she can come after you if your income goes up for increased SS, but you can go after her to reduce SS should her income ever increase.

Your mediator bent you over. Unfortunately, mediators will generally lean on the person they feel is more willing to capitulate. And in your case, that was you.

The mediator may claim that future layoff is an asset, but unless they have caselaw to back that up I would tell them to get bent.

Support for the dog of $120 a month? Really?? Is it on a special meal plan consisting of truffles and caviar? Does it have significant health issues that warrant such expenses? Either way, I would say "I will take the dog". Should she baulk at that, I would argue that if she is unwilling to part with the animal, she should be responsible for maintaining it. Bizarrely enough, I have heard of this, but only in instances with individuals with uber-high incomes (like celebrities). Do you get "access" to the dog?
 
lol, only access i get is when she needs a dog sitter while she goes south for vacations on all my hard earned money.

She said throughout mediation that her main concern is for the children. Yet she proved time and time again that her main concern was strictly financial. Case in point with the dog support. She even went to her lawyers to see if she had any rights to my then girlfriends bank account. She figured that she was entitled to a portion of her savings as well.
 
I never cease to be amazed by the tactics in family court - that's totally ridiculous - both the dog support AND the possibly lay-off package. Sounds like that mediator isn't helping at all so I'd try a different route all-together...

As for SS, I think anything is possible until you have a full and final release which is why many lawyers now recommend an immediate payout for the release if it's manageable. I think even with a final order it could be re-opened but hey I could be wrong on that one.
 
Cashcow4ex: what is the status of your agreement/divorce? Are you still negotiating or are you looking to vary an agreement already in place?

FG
 
The separation agreement was finalized 2years ago. In the agreement we revisit spousal support every August. Last August when we sat down to review the spousal support the computer spit out a number of zero because she finally had to use the business amounts she should have used during mediation.

So that's my issue. Had we did mediation with the current 2009 totals the computer would have said her amount of entitlement would have been zero which would have drastically changed our negotiations for spousal support. In fact the mediator probably would have looked at our salaries and determined them to be fairly equal and therefore no spousal support would be granted. But because we had to use her 2008 income which was considerable smaller,they granted her spousal support.
 
cashcow4ex said:
The separation agreement was finalized 2years ago. In the agreement we revisit spousal support every August. Last August when we sat down to review the spousal support the computer spit out a number of zero because she finally had to use the business amounts she should have used during mediation.

So that's my issue. Had we did mediation with the current 2009 totals the computer would have said her amount of entitlement would have been zero which would have drastically changed our negotiations for spousal support. In fact the mediator probably would have looked at our salaries and determined them to be fairly equal and therefore no spousal support would be granted. But because we had to use her 2008 income which was considerable smaller,they granted her spousal support.
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So basically you paid SS for a year what you should not pay at all... I would consider to bring motion to get those monies back. Base on what you wrote that will give you some closure. Just make sure you keep positive balance between what it will cost you to get it back....
 
Thats correct workingdad. I paid my first year of support when I dont think I would have if she disclosed her 2009 earnings.
I am fine with that first year. I am not fine with the seperation agreement saying she is entitled to 7-15 years of support. Even though its been almost a year I havent had to pay her, its still being held over my head. Because she runs a home daycare her business can go up and down. I dont want to be her money back up if she decides to reduce her kids for a year to take a break. I also have to maintain a life insurance policy to cover the 15 years of support at $300 a month in the event of my death.
 
cashcow4ex said:
Thats correct workingdad. I paid my first year of support when I dont think I would have if she disclosed her 2009 earnings.
I am fine with that first year. I am not fine with the seperation agreement saying she is entitled to 7-15 years of support. Even though its been almost a year I havent had to pay her, its still being held over my head. Because she runs a home daycare her business can go up and down. I dont want to be her money back up if she decides to reduce her kids for a year to take a break. I also have to maintain a life insurance policy to cover the 15 years of support at $300 a month in the event of my death.
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A layoff sample is not a marital asset until enacted: stand fast on that one, because the courts would want that in place in the event that termination happens and support needs to be continued.

You have two paths to resolution: mediation and motion

If you are dissatisfied with current mediator, find a new one. But beware that you can't keep trading them in until you find satisfaction. Mediation requires sawing-off at some point.

If you pursue a motion you will be in it for the long haul. You can file a motion to vary support under change in material circumstances clauses of the divorce and family law acts. This will become an issue of burden of proof.

If you are looking to reopen the agreement's other elements, such as duration of support, you will not have an easy time of it. Courts are reluctant to enter into issues of 'separation agreement remorse'.

However, if you rely on SSAG for support calcs and it comes out with a number of $0....then duration isn't going to be an issue, is it?

Suggestion: Focus on current amounts, either through mediation or the court. Once you've got it adjusted down to $0 through either method, the ball will be in your court. If your ex decides to deliberately reduce her income in following years, she will have to argue the reasonableness of that reduction at a new motion she will have to bring: the burden to prove that she shouldn't have income imputed to her will be her row to hoe.

If you go to a motion, you can throw in a request for repayment of previous over payments. You can try a reopening of the agreement duration clause too, using SSAG's recommendations, but that's going to be extremely tough.


And dude, I don't even know what to say about dog support.

FG
 
cashcow4ex said:
the seperation agreement saying she is entitled to 7-15 years of support.
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How long was your marriage? The normal duration for SS is 1/2 year to 1 year for each year of marriage. Were you guys married 15-30 years?

Again, mediator bent you over on that one if you agreed to it.

Did you get your agreement reviewed by a lawyer and receive independant legal advice? Or did your mediator draft up the agreement and you both signed without seeking further advice?
 
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