Podcast: Legal Advice on Spousal Support in Ontario
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In this transcribed interview with Dale Goldhawk of Zoomer Radio AM740, Toronto family lawyer Lorne Fine, of Fine & Associates Professional Corporation, offers advice on spousal support. Read the interview below, or listen to the podcast at the bottom of the page.
Goldhawk Fights Back Podcast: Recorded Aug 20, 2013
Dale: Okay, its 18 minutes after 12:00, time to say hello to Lorne Fine, family and divorce. Lorne, it’s great to see you in the studio once again.
Lorne: Thank you for having me again.
Dale: Now listen, the last time you were here, we talked in fact I think for a couple of shows. We talked about child support…
Lorne: Right.
Dale: …and marriage difficulties, because that’s a huge issue. And today, we’ll take that a step further and talk about spousal support, quite a different kettle of fishes as it were.
Lorne: Right, it’s an emotional topic for a lot of people.
Dale: More so than child support, I bet.
Lorne: Much more…
Dale: Really?
Lorne: …emotional.
Dale: More emotionally laden as it were?
Lorne: At least you know that child support is going to eventually end. You are eventually, your child are going to grow up and they’re going to be independent and they’re not going to be entitled to support.
Dale: True.
Lorne: Spousal support may not end, so…
Dale: Ever.
Lorne: …it’s ever.
Dale: Really? I mean not ever.
Lorne: It may last for a very, very long time. It may last for longer than the duration of the relationships. So, it can be very emotional for people.
Dale: Well, first off, you’ve given me some inscrutable legal stuff here.
Lorne: Yes, I gave you a print out…
Dale: You’re just trying to impress me with how complicated all this stuff here right?
Lorne: Yes, we can’t simplify it…
Dale: No, no.
Lorne: This is supposed to simplify it. I guess the difference is, with child support, we talked about last time, the child support guidelines.
Dale: Yeah.
Lorne: So it was , you looked at the person’s income, the payer’s income, you look at how many kids they have. And there is a chart and you can kind of calculate what the support owing…
Dale: Yeah we were reading off some examples based on income.
Lorne: Right. So there is no specific chart for spousal support, necessarily, because it is more complicated. Because you’re looking at the payer’s income, the recipient’s income, how many kids they have, how long their marriage is. There’s all kinds of variables. So what I gave you was a printout from this company called Divorce Me. And what this does is that it calculates a range of spousal support, based on the spousal support advisory guidelines.
Dale: Alright.
Lorne: So, there’s a… it’s called SAGS. So the SAGS were developed by academics and lawyers and so on. And, it’s not law, but it’s something that is very persuasive for the courts, the courts…
Dale: The courts would look at it and say, they accept the reasoning as it were?
Lorne: …they look at it. Right, they say, because it’s a range, right? There are so many variables that the courts have said, “Okay this is persuasive.” Not binding on the courts, because they look at the ability of the payer to pay, the means of the payer and the needs of the recipient.
So, when you look at this printout I gave you. It’s from a company called Divorce Me.
Dale: Right.
Lorne: And you punch in what the person’s income is…
Dale: Well these are real people, you’ve blacked out…
Lorne: I blacked it out.
Dale: …for privacy issues, obviously, and given us a look at this particular case.
Lorne: So in this case, you have a male who is the payer who is making $96,000. And you have the female who is making 20,500. I inputted income to her, because she is not really working.
Dale: Yeah.
Lorne: They have two kids, and you’ll see on the upper hand side. It says, “child support.” If both kids live with the wife, is 13.67 a month.
Dale: A month, as long as they remain dependent…
Lorne: As long as they remain…
Dale: …as they were and not in school, and that whole thing we discussed before.
Lorne: That’s right, as long as they are in school full time, they’re dependent, and so that’s the child support. Then you look at the spouse side guidelines and it gives a range. Here, they lived together, they collaborated, for 17 years. The recipient age of separation was 46 years old, and it gives a range. The low range of 549 a month, the second range is 898 and the high range is 1257.
So it gives a whole range and then it calculates the tax consequences of the child support and the spousal support, and it gives a percentage called NDI, net disposable income, what their disposable incomes are. And you’re trying to calculate it, so, you’re trying to equalize their incomes for the most part.
Dale: Yeah.
Lorne: So, what’s important to remember is that unlike child support, spousal support is tax deductable. So it’s tax deductable to the payer, but it’s taxable to the recipient. So the tax consequences are different. And I should say, it’s tax deductible as long as the support is pursuant to a court order or an agreement and its periodic. So, if it says, “Every month, the payer is going to pay the recipient 549.” It’s tax deductable to the payer.
But if it says a lump sum, if it says, “The payer will be $20,000 to the recipient,” it’s not tax deductable and it’s not taxable to the recipient. So as long as it’s pursuant to an order, an agreement, periodic…
Dale: Something is written down, somebody can check if necessary to make sure…
Lorne: That’s right, the CRA can come and check.
Dale: …revenue, the CRA would come along and say…
Lorne: it’s all about revenue k
Dale: …”Listen pal, you didn’t pay that support at all.”
Lorne: And it happens all the time.
Dale: I would think so.
Lorne: “Show me the agreement, show me that you actually paid this.”
Dale: As you say and let me ask a series of dumb questions in order to…
Lorne: No questions, we know that.
Dale: Oh yes there are. I know, because I’m a specialist. It depends on many different qualifier and variance in terms of, such things as, how long did you live together and the incomes of both. And I guess the effort is to try and equalize the income. You used that word yourself. That’s really what the law is trying to do in a case like this, to a certain extent.
Lorne: Well it’s not always… To a certain extent, it’s not always equalized. Like when you look at this scenario here.
Dale: It’s a huge gap.
Lorne: There’s a gap.
Dale: You got 20,000 for the wife, as opposed to 96,000 for the husband.
Lorne: But if you look at NDI for the mid range, you’ll see it is 54 and 45…
Dale: Right.
Lorne: …so the wife actually ends up with a little bit more because she has two kids.
Dale: Well that brings it up relatively equitable.
Lorne: But she should have more because she has the kids, right?
Dale: Yeah.
Lorne: If she has the kids then it’s not going to be 50/50, necessarily. So, the purpose of spousal support is to, the courts look at what one spouse’s contribution to the relationship was. Did the wife stay home and raise the kids? Did she suffer, financially while the husband worked? Did she give up a career to take care for the kids?
Dale: So all that history is going to count. That’s all going to be a good argument in court.
Lorne: All the history, right. What were the rules during the relationship? Did she suffer financially? How old is she? What’s her chances of finding a job?
Dale: Maybe she stayed home and put him through law school for all you know.
Lorne: Then for sure, she’s going to get support.
Dale: Yeah that would be a biggie right there.
Lorne: Yeah, if she sacrificed and stayed home and cared for the kids and put him through law school. He can’t become a lawyer or a doctor or whatever and then say , “See you later, I’m leaving you out in the cold,” right?
Dale: Well that’s right. And there are stories like that going around. I’ve heard many and I’m sure you heard, many, many more.
Lorne: Right, but a court’s going to say, “That’s not fair, that’s not ethical. She has to be compensated for what her role during the relationship. She’s suffered an economic disadvantage.” And what are her prospects of employment? If she’s in her 50s and she’s never worked before, is she going to a job?
She has to retrained, that’s very difficult.
Dale: Let me give you a couple of possible scenarios. But later on, in life, the wife finds another life partner and actually gets married. Does that extinguish the support?
Lorne: Shockingly to most people, no.
Dale: People expect to answer will be yes, don’t they?
Lorne: Exactly, people say,” I hope she gets married, so now I can stop paying child support…’
Dale: No.
Lorne: Sorry, not necessarily…
Dale: It could, it could.
Lorne: …It could if she marries a multi-billionaire.
Dale: If she marries a millionaire.
Lorne: Then you can say that there is no need. But if she gets remarried, there is a [chain], in her circumstances, and her needs are less and so the support could be reduced. But that doesn’t mean it’s over, it’s not a given. So that’s a good question.
Dale: Yeah. You see that happen very frequently…
Lorne: Oh yes.
Dale: …where there is a remarriage…
Lorne: Yeah.
Dale: …where you have the spousal support still, it could be varied, I guess, couldn’t it?
Lorne: Very.
Dale: Would that be a part of it.
Lorne: Yes.
Dale: I mean maybe the husband would go back to court and get varied.
Lorne: It could always…
Dale: The former husband get it varied.
Lorne: …Usually what a court will do, let’s say in a long term marriage. It will say, “This is the quantum of support.” So husband pays wife, $1500 a month in spousal support. For, it won’t say an end date, the court won’t say, “Ending at X date.” Sometimes it does, but if there is a long term…
Dale: As with the kids, because there is an end to that
Lorne: Everyone knows that the kids are going to, the support for kids will end when they’re no longer dependents.
Dale: Yeah.
Lorne: But for spousal support, usually, you’ll see, if you look at the divorce me software I gave you. It says,” This gives you.” This formula results in a range of spousal support…
Dale: Where are you?
Lorne: If you look at the first page, right under the written.
Dale: Yeah, okay I see.
Lorne: So it says, they’ve been together for 17 years…
Dale: Right.
Lorne: …so it says, “This formula results in a range of spousal support of 549 to 1257 per month for an indefinite…’
Dale: Indefinite unspecified duration.
Lorne: So that’s scary for a lot of people.
Dale: Well that’s pretty close to forever as you can get, right?
Lorne: Subject to review, subject to variation and possibly review with a minimum duration of 8.5 years and a maximum duration of 17 years from the date of separation.
Dale: Well, then there is a time limit on it.
Lorne: Well as I said, this is just a guideline, it’s not binding. There is no definite…
Dale: But in theory and in like, could continue until the end of the life of the spouse.
Lorne: Very possibly. I had a client that was married for 12 years and he’s been paying support for 15 years, so…
Dale: Whoa, longer than he was married?
Lorne: Right, but he’s making much more than her and he always will, and…
Dale: What if the payer dies? Then of course the wife has a claim against the estate.
Lorne: That’s right.
Dale: Simple as that. For a continued payment.
Lorne: That’s right.
Dale: Well then, how you would even wrap up that estate if it had to continue to pay?
Lorne: Well usually what the recipient would want is some security for the spousal support.
Dale: Yeah.
Lorne: So usually the recipient will say, “I want to be a beneficiary on your life insurance policy.” To secure the support obligation. If you look down at the divorce mate software again, it says under life insurance , “to secure support,” right?
Dale: Right.
Lorne: So it says, spousal support at the mid range, he has to get a life insurance of an $186,000 to secure the spousal support obligation and child support obligation in this case. So…
Dale: That’s common then, that the payer would have to secure life insurance in order to pay if he should have the temerity to die.
Lorne: Right. The courts could order it, yes. If he dares to die before his support obligation…
Dale: “How do I get out of this?” Well, by dying, but not really, because the estate would be… would be a claim against the estate and the life insurance policy he was compelled to take out would be…
Lorne: Right.
Dale: …or she, it could be the other way around, couldn’t it?
Lorne: Well I was actually just talking to Mary about that. Nowadays, what’s interesting is, I’m seeing more and more women who are the payers.
Dale: Yeah.
Lorne: And the husbands are the recipients, before it was the other way around. As women are earning more income, they’re becoming the payers and it’s becoming more common.
Dale: Yeah. It is collectible, and does it have the same enforcement teeth as child support?
Lorne: Yes.
Dale: Oh all of this can go through...
Lorne: It can all go through…
Dale: …the financial responsibility office.
Lorne: Correct.
Dale: And they can do terrible things to you if you don’t pay…
Lorne: Correct.
Dale: …essentially they can, in theory.
Lorne: They do and they can suspend your driver’s license and garnish your wages and so on.
Dale: So typically, you would work out child support and spousal support in a separation agreement?
Lorne: Right.
Dale: That would inform part of what is known colloquially as the separation agreement.
Lorne: Right. Either the terms of spousal support and child support are going to be in a separation agreement or in a court order. In order for the spousal support to be deductable, as I said, to the payer, it has to be in an agreement.
Dale: It has to be written down.
Lorne: It has to be in separation agreement. If it’s on napkin, it’s not going to count. The CRA is going to say, “This doesn’t work, you can’t deduct it.” It has to be in a separation agreement…
Dale: Yeah.
Lorne: …a formal agreement that’s properly done and then it can be deductible to the payer.
Dale: Okay, we’ve laid out some legal framework, now it’s up to if you have question for Lorne Fine, our family and divorce lawyer.
Recording: Goldhawk Fights Back For You, airs Monday to Friday, 11:00 to 1:00 on AM 740 Zoomer radio.
Dale: 12:35 Lorne Fine is here answering your questions about divorce issues, family law and here are the numbers, 416-360-0740 or 866-740-4740. And we have John on the line. John, do you have a question for Lorne Fine? John?
John: Hello?
Dale: Yeah, go ahead, please.
Lorne: Hi.
John: Yeah, I just wanted to clarify what you said regarding the tax deductibility…
Lorne: Right.
John: If I heard you correctly, did you say you can deduct income tax on spousal support, provided it’s paid on a monthly basis?
Lorne: Yes.
John: But not if it’s a lump sum payment?
Lorne: Right. Lump sum payments, you’ll have situations where one spouse will say, “I don’t want a spousal support obligation, I’m willing to pay you $100,000 in order to get a release of spousal support.”
John: Right.
Lorne: Then that $100,000 is not tax deductible to the payer or taxable to the recipient.
John: Okay, so to be tax deductible then it has to be on a regular basis and not a lump sum payment, even though there is an agreement that’s signed.
Lorne: Correct.
John: Okay, thank you very much.
Dale: Thanks very much for that John. So that’s an interesting and very important dentition isn’t it?
Lorne: Yeah.
Dale: You may think, “I’m getting off the hook for a 100,000,” for example. And you may well be getting off the hook from your spouse, but that 100,000 comes out of after tax dollars.
Lorne: That’s correct and not only that, you may think you’re getting off the hook, but you may not get off the hook. I was just talking to Mary about this as well. Is that, even when you pay a lump sum support and there is a release, it’s not completely impossible for your wife to come back sometime down the road and say, that I need support again.
A court can always review the agreement, always review what happened, always review whether the agreement was fairly done and so on. There have been some recent cases where exactly that happened. The wife got sick and the money was spent and she was destitute and the court looked at how the agreement was arrived at, in spousal support notwithstanding the release.
So it’s very important to do things very exact, very properly and make sure everything is done just proper.
Dale: Well that’s a basic principle of lies isn’t it? You can always, in many cases come back and seek a review or some kind of remedy that you may not have had before, because situations may changed in your life.
Lorne: That’s right.
Dale: That would be a big factor in family law, I would guess.
Lorne: Right, the courts are there to ensure that agreements are done properly, that people are treated appropriately. And if somebody’s not treated properly, they can go to court and seek relief.
Dale: Okay, here’s Robbie calling on his cell phone, Robbie what’s your question?
Robbie: I have a question about child support. I’m from the United States, hopefully you can answer it.
Dale: Go ahead.
Robbie: I haven’t seen my kids in like ten years and when we went through the divorce and everything I had to pay like $148 a week child support. I took my ex-wife to court a couple of years ago to see my kids and the only thing I got granted was, I was allowed to write them a letter.
I wrote them a few letters and no letters came back. So I kind of stopped writing the letters, I didn’t want to push it. A couple months ago I had to go to court for, her new husband, which she got married six months after me, which is irreverent I believe. But, they wanted to carry his last name and take my last name off the kids. So anyway, I went to court and everything and that’s exactly what happened. My kids don’t have my last name, they don’t talk to me, but I still pay child support, is that correct?
Dale: Are your kids…
Robbie: Should I be obligated, if he wants to be the dad and everything, why wouldn’t he want to be financially the dad?
Dale: Are your kids in Ontario or where are your kids located?
Robbie: No, I’m in New York.
Dale: You’re in New York, are your kids in Ontario or where are your kids? Are they in New York as well?
Robbie: They’re in New York as well.
Dale: This is totally an American situation.
Lorne: I don’t know, you should speak to a US lawyer, but I think if it happened here, I find that kind of strange that a judge would actually get rid of the biological father’s last name. I could see a hyphenated or something to that nature. So, you’d have to speak to an attorney in the US and also as far as child support is concerned. If it happened here, you would probably still be obligated to pay child support.
Dale: Well, you’re the biological father and that wouldn’t be extinguished just because…
Lorne: Because of a name change.
Dale: Yeah, but that’s only in Ontario. [There] may be a different argument to be made in a New York court.
Lorne: Yeah, you should speak to a US lawyer and see if you want to terminate the support agreement.
Robbie: Okay.
Dale: Thanks a lot, Robbie.
Robbie: Okay, thank you,
Dale: Alright, bye-bye. Here is Joyce on the line, from Coberg [SP]. Joyce, do you have a question?
Joyce: Yes it’s a question about spousal inheritance, really.
Lorne: Okay.
Joyce: A couple that were legally separated, never divorced. And if one dies and has an insurance policy, she is not a beneficiary, is she still entitled to claim part?
Lorne: Okay, I’m not, maybe you can clarify the question. She is the beneficiary?
Joyce: No. She is not the beneficiary.
Lorne: Okay.
Joyce: They’ve been legally separated, but never got a divorce.
Lorne: Okay.
Joyce: Now if he were to pass on and she is not the beneficiary, is she entitled to go after it or any part of it?
Lorne: I see, she would have a claim to, as far as, in an insurance policy, if it’s a term policy. There is no cash value to a term policy. If it’s a whole life policy, then there is some value to it, as of the date of separation. When you say “go after it,” I’m not sure if you mean she’s a dependent. If she’s the dependent…
Joyce: No.
Lorne: She’s not the dependent, than I don’t see the claim, really.
Joyce: Okay.
Lorne: if it’s a term life, there’s no value to it.
Joyce: Right.
Lorne: If she was a dependent of his and he was supporting her and like we said earlier, if the life insurance was necessary to secure the support obligation, then yes, she would have a claim, so…
Joyce: No it was a term insurance and like I said, they signed the legal separation and she agreed she wanted nothing.
Lorne: So if there was already an agreement saying she doesn’t want anything, I’m not sure what the basis of that offer…
Dale: That would be a tough argument to change that, wouldn’t it? Joyce, thanks very much for that question. Here’s Aklima, calling from Toronto, what’s your question Aklima [SP]?
Aklima: Hi there, how are you?
Dale: We’re fine.
Aklima: I just like to find out, how do I go about finding my husband? He lives up at a cottage really. And he’s refusing to support little David and myself. I’ve been looking after my dying father, he did pass away though. However, for the past year and a half, my husband is refusing to give us absolutely no support whatsoever. So I’m on my own with a disabled child who has a lot of needs. And he has a gastronomy tube in his stomach and I’m really frantic and I really need help from him.
And when I call the cottage, there is this woman that he put into the cottage and she will not allow me to speak to him. She threatens me all the time to call the police so it’s very difficult to get hold of him.
Dale: Alright, well let Lorne ask a couple of questions so he can give you some better advice here.
Aklima: Yes, please.
Lorne: Does your husband work?
Aklima: He’s on permanent disability.
Lorne: I see. He’s on permanent disability so his income is not very large.
Aklima: Well he gets 65,000 a year.
Lorne: Oh, so it is large.
Aklima: Yes.
Lorne: So, either he agrees to pay you child support. It sounds like you’re taking care of a disabled child.
Aklima: Yea.
Lorne: So it sounds like you suffered as a result of this relationship.
Aklima: Yes.
Lorne: It sounds like you’re not working.
Aklima: No I’ve been staying home to take care of David since…
Lorne: If your child is severely disabled and will always be dependent, the child support is going to continue for probably the child’s life, if the child is always dependent. Either he agrees to pay child support and spousal support… He’s making $65,000. That’s sufficient to support you and your child, so…
Aklima: He’s refusing and he’s hiding and he joined a biker’s group and he’s really not faithful.
Dale: Let’s get back into the advice department. Lorne, what should Aklima then be doing?
Lorne: You should take him to court.
Dale: Just take him to court, yeah.
Lorne: Take him to court, either he agrees to pay or if he doesn’t, that’s what courts are for. Go to court, you’ll claim support, you’ll get child support and you’ll probably get spousal support.
Dale: Yeah.
Lorne: So, I wouldn’t hesitate, either someone’s prepared to enter into an agreement or they’re not. He obviously doesn’t care…
Aklima: Correct.
Lorne: …And go get a lawyer, go to legal aid if you can’t afford a lawyer and…
Aklima: I’ve done all of that.
Lorne: Okay.
Aklima: And what has happened, as my dad was very ill. I’ve been taking care of him, he died out of cancer. So, that separation, I had to take care of my dad and David at the same time, and myself…
Lorne: Okay.
Aklima: …But I tried to reach him and he’s refusing regardless.
Dale: You’re not going to be able to do this by yourself. You need a lawyer to fight for you. You need to go to court and after that, the family responsibility office, correct me if I’m wrong here Lorne.
Lorne: That’s right.
Dale: Would be there to collect that money…
Lorne: Right.
Dale: And they have some pretty good tools to use to get that money out of your husband.
Lorne: Right, if he’s getting a check for his permanent disability. And all you have to do is get a court order and let FRO, the Family Responsibility Office, enforce the order and that’s it.
Dale: Aklima, thanks very much. In a case like that, would Aklima have a pretty good case to get legal aid you supposed? Under those conditions, what you know.
Lorne: If she doesn’t have any assets, then yeah.
Dale: Yeah, I would think so.
<interlude>
Dale: I hope everyone enjoyed that musical interlude, we’re so busy here talking about whatever it is we were talking about. Okay, we’re back, Lorne Fine is here 416-360-0740 or 866-740-4740. And we have Joann on the line from Toronto. Joann, do you have a question?
Joann: I do.
Dale: Go ahead please.
Joann: And I think it’s more a child support question.
Host and Lorne: That’s fine.
Joann: In a situation where the higher income earner…
Lorne: Yes?
Joann: ...has custody of the children. When child support is considered and determine, does the income of both parents come into play? Or is it just for the parent that doesn’t have the children for custody?
Lorne: Okay, so the access parent as a lower income. So there’s two parts of child support that we spoke about last time. There is base support, which is called section three support. Based on the person’s income and then there is section seven child support which means extraordinary expenses.
Special expenses, whether it’s orthodontics, post secondary education and so on. So, for your answer is, for base support, the income of the payer is only determined and not the custodial parent. But when it comes to section seven expenses, special expenses, you look at the income of both parties and both parties are going to pay their proportionate share of the expenses for the child. Whether it’s university expenses and so on.
So, the non custodial parent’s income will be relevant or sorry, the custodial parent’s will be relevant when it comes to section seven expenses.
Joann: And if the separation agreement specifies that those section seven expenses are 50-50…
Lorne: Yes.
Joann: ...does that override the consideration of the income differentials.
Lorne: Okay so they have a separation agreement that says, even though there is a big difference in their income, they’re paying it equally?
Joann: When the separation agreement was signed, there wasn’t such a big difference.
Lorne: Okay so now things have changed.
Dale: There you go.
Lorne: So like we said, when things changed, either the agreement has to change Because that’s not fair and reasonable. And if the parties won’t agree to change the agreement, then I would think the person with the lower income should go to court and seek a change.
Dale: That would be a good argument would it not? The income has changed.
Lorne: Sure, why should it be equal if you’re talking about university expenses, which could be very expensive? Why should the lower income pay the same amount?
Dale: Joann, thanks very much, I hope that helps. Here’s Jill, calling from Toronto. Jill, do you have a question?
Jill: Hello?
Dale: Hi.
Jill: Hi, mine is regarding spousal support.
Lorne: Yes?
Jill: Basically, it’s regarding a buyout instead of doing a monthly payout.
Lorne: Yes?
Jill: They want to offer $20,000 which my lawyer won’t sign on, but I sort of need advice on how much the buyout should be for me to not to have to go to court. Does that make sense?
Lorne: Okay, so it’s always difficult to determine what a buyout is. Lawyers get nervous about that. Because you’re accepting a lump sum amount and it may not be sufficient for your future needs, right?
Jill: Right.
Lorne: God forbid, if you get sick down the road, it may be difficult to come back. So lawyers are reluctant to sign a lump sum. I get very scared about that too.
Jill: Okay.
Lorne: So, what your lawyer should be doing is doing exactly what we did earlier. Is, do a divorce mate calculation.
Jill: It’s approximately 1100, but that’s on the lower end.
Lorne: Okay, so but the divorce mate calculation would show you what a lump sum support amount would be.
Jill: Yeah it’s approximately like over 75,000 or something, but that’s for seven years.
Lorne: It sounds like you have to decide whether that’s appropriate or not. I can’t tell you whether that’s appropriate or not.
Jill: Yeah.
Lorne: If the divorce mate calculation is showing far more than what they are offering, I would be seriously concerned.
Dale: That’s a big difference between that and $20,000.
Jill: Well that’s based on seven years but I’m willing to accept like four years or less. I just want to be able to get this finished.
Lorne: Over, so okay, people say that all the time, “I just want this over, I just want this over.” But you have to think about your future.
Dale: You can repent in leisure.
Lorne: You may regret it down the road, and so you really have to be very careful. People are like, “I just want over.” But then five years from now, you may regret it.
Jill: Right.
Dale: It’s a tough decision. It’s kind of in Jill’s hands isn’t it, to really decide what to do there?
Lorne: It sounds like he’s playing hardball…
Jill: Yes.
Lorne: Sounds like he’s giving you a low ball offer. But that’s really something to talk with your lawyer about. Discuss with your lawyer and evaluate the cost of going to court with your rewards. It sounds like you’re entitled to support so…
Dale: Yeah.
Jill: Yes, I was just trying to avoid going to court, but it may be in my best interest.
Dale: Well, speak to Jill about that…
Lorne: I can’t tell whether it’s in your best interest or not your best interest…
Dale: But going to court in itself is not, why, you don’t want to do that or?
Jill: I was worried about how long it would take…
Dale: Yeah.
Lorne: How much it cost.
Dale: How much it cost.
Lorne: It’s a normal concern, how long it is going to take? How much does it cost? What are my chances of success?
Jill: Yes.
Lorne: These are all normal considerations and you have to evaluate all those factors to determine whether it’s worth your while or not. That’s something you have to discuss with your lawyer.
Dale: Is your lawyer giving you some clear advice here as far as you are concerned?
Jill: He basically is saying we should go to court.
Dale: Yeah.
Lorne: Well, how long are you together for, seven years?
Jill: Yes.
Dale: Yeah.
Lorne: And so, I don’t know what his income is but your income…
Jill: Zero.
Lorne: Your zero? And he’s making what?
Jill: Approximately 50ish, 55.
Lorne: Right. Well if you’re not making any money. I would seriously consider…
Jill: I was home with my child, so.
Dale: Yeah, well there you go.
Lorne: That’s a prime example right? You stayed home, you raised your child, you have no income, and he’s making money. So it sounds like you’re entitled to support and that’s the first step, “Are you entitled to support?” “Yes.”
Second is, “What is the quantum?” So, that’s something for you to evaluate and determine like, I can’t tell you whether you should go to court or not.
Dale: Yeah.
Jill: And I guess there is a certain amount for a buyout that a lawyer would sign on, is that right?
Lorne: Well, when you’re telling me the range is 75 and they’re offering 20, any lawyer is going to be reluctant to sign on the 20, right?
Jill: Yeah.
Dale: For sure.
Lorne: Because any lawyer is going to say, five years from now, Jill: is going to regret signing.
Dale: Jill, thanks very much, I hope that helps. Those are really tough decisions to make.
Lorne: Very tough and I hear it all the time right? How much is it going to cost? How long is it going to take, I’m anxious to get this over with. But then you have one spouse giving a lowball offer…
Dale: Yeah.
Lorne: …maybe he knows that she doesn’t want to go court. That she’s not, she doesn’t like to fight. She wants peace, she wants closure.
Dale: Yeah, yeah. What a bargain though, 20 instead of 70? Give me a break.
Lorne: It is a bargain.
Dale: I’m not even a lawyer and I’d say, “Give me a break, pal.”
Lorne: That’s why the lawyer is not signing.
Dale: Yeah that’s exactly right. But we don’t know the circumstances to Jill’s case.
Lorne: No.
Dale: But if she manages to get secure legal aid Because her income is zero and the lawyer is arguing the case. She shouldn’t be concerned about going to court, really, should she? If legal cost isn’t part of it, it’s her best shot of getting a better deal I would think.
Lorne: Right.
Dale: I mean, that’s what I would say.
Lorne: Especially if she has no income, right? If she stayed home and raised the kids. I think her downside is low as far as securing legal aid, going to court. But like I said, maybe that’s not a personality, right?
Dale: Yeah.
Lorne: Maybe she can’t stand the stress, maybe she wants closure.
Dale: Well Because emotional baggage is always attach to these things. It isn’t a simple point of law or two that gets argued, it’s somebody’s life.
Lorne: Maybe her husband is a bully. Maybe she’s afraid of him, we don’t know.
Dale: Yeah.
Lorne: So there’s all kinds of factors that enter into the equation. So, I think that when you hear that the lawyer won’t sign the agreement. No lawyer wants to sign an agreement whether there is a danger that they’ll going to be held negligent. Where there is concern…
Dale: Well you could argue negligence about that lawyer. If in fact the lawyer said, “Oh yeah, that’s fine, 20 on 70…”
Lorne: 20 sounds good.
Dale: “That sounds good, let’s go for it. Come on Jill, let’s go.’
Lorne: But he’s not signing it.
Dale: That’s right.
Lorne: Or she’s not.
Dale: Or she’s not signing it.
Lorne: So that shows you something.
Dale: Yeah, yeah. And as you say, these things are much more emotional, even though child support issues are already pretty emotional and we heard some of that today. Spousal support, even more so.
Lorne: Even more so, yes. Like we said, it could be a life sentence. And it could be for a long time.
Dale: If you’re the payer, nobody wants to hear that, that’s incredible.
Lorne: No one wants to hear indefinite duration. No one wants to hear those words.
Dale: Well, how many cases would it be forever? I mean it’s not unusual, I’m just saying.
Lorne: If there is a long-term marriage, with kids. Like Jill, she stayed home and he’s making money and she’s not. It’s not that unusual at all.
Dale: Even if she gets remarried, it’s not extinguished as they say, as you guys say.
Lorne: It may not be extinguished yes. Poor payers.
Dale: And so the old vow, “Til death do us part.” May in fact be absolutely true when it comes to spousal support.
Lorne: It’s accurate. It may be truth. Maybe that’s the key, to stay marriage.
Dale: Or exercise a little more caution and discretion when choosing one’s mate. Would that not be a good idea?
Lorne: You never know. People change, you never know.
Dale: Would divorce lawyers make good pre-marriage counselors? I mean, you kind of know what to avoid.
Lorne: I got married. My wife is normal and I thought she still is and I still love her…
Dale: There you go.
Lorne: …we’re together for 20 years.
Dale: Whoa great.
Lorne: But she may change tomorrow, I don’t know.
Dale: Lorne thanks very much for coming in and talking about these issues.
Lorne: I love you, Felicia.
Dale: I just remember that okay, he was just kidding on the radio…
Lorne: I love my wife.
Dale: Lorne Fine, our family and divorce lawyer. He will back with us soon to talk about some other aspect of some very complex law.
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