Archive for the ‘ child support ’ Category

Cruise Control

Protect your assets like a celebrity!

While Canucks owner Francesco Aquilini was recently successful in shielding his financial divorce documents from prying eyes, the same can’t be said for the financial terms surrounding the quickie divorce of Tom Cruise and Katie Holmes.

According to oneUSmedia source, Katie walked away with no spousal support from Tom, or any share in Tom’s assets, certainly noteworthy considering he’s worth approximately 250 million US dollars.

All of which is not so surprising since the pair apparently inked an ironclad pre-nup, which no doubt specified no support or asset division in the event of divorce.

But before anyone sheds any tears for Katie, she will repeatedly be receiving child support payments of approximately $33,300.00 per month for their daughter Suri, until she turns 18 years of age.

Here in BC, the amount of child support is calculated by using the income of the paying spouse, and the Federal Child Support Guidelines.  I have no way of knowing how they calculated this amount for Tom.  (However, for those curious souls like me, if Tom was here working in BC and paying child support of $33,300.00 for 1 child, he would need to have an income of approximately $4,500,000.00).

However, just like here in BC, Tom is also responsible for additional expenses, such as Suri’s tuition, ($40,000.00 per year), medical expenses, etc.  In BC, Tom and Katie would share such expenses in proportion to their respective incomes, (and adjust annually), or they could simply agree to share them 50/50.

According to the sameUSsource, one of the divorce terms also specifies that Suri not attend any sort of “ residential school,” which has been interpreted by some as meaning a residential school associated with theschoolofScientology.  Not sure if that’s the correct interpretation, although I am fairly certain the exact nature of the “residential school” to be avoided, is clarified in the divorce settlement, otherwise Suri would have a difficult time eventually attending any long distance educational institutions, (such as college or university), and residing in residence.

For those of us non-celebrities contemplating a pre-nup, (also called a Marriage Agreement), it can be an extremely advantageous document to have in your pocket, (or purse), saving you legal costs, stress, and delay, in the event of a separation or divorce.

So take my advice, make like a celebrity, and get one!  Did I mention, I’m a family lawyer who prepares pre-nups and Marriage Agreements……?

P.S.  The family law regarding division of property, (and other matters), on separation are changing in March of 2013.  It’s a good time to review your options!

 

Three smart moves to help optimize your chance for shared custody!

The first casualty of war is the truth. The first casualty of divorce is access.

One of the most contentious, and hugely frustrating, family law problems arising from separation or divorce is (sadly) resolving matters of access. And I’m not referring to those obvious cases of violence, or parental neglect, where an abusive parent is rightly allowed only controlled or limited access, or denied access altogether.

No, I’m referring to those cases where there are two loving and responsible parents, and one parent refuses to provide meaningful access to the other. For the purpose of this article I’m going to assume that the other parent is requesting shared custody of any children. Shared custody is a parenting arrangement whereby the child resides in the care and control of each parent between 40 to 60% of the time.

So, whether or not the matter eventually goes to court, or hopefully resolves itself through discussion or negotiation, if you happen to be the other parent here are three smart moves to keep in mind.

Firstly, focus (only) on your new relationship with your child. Do not become enmeshed in the past wrongs of your ex. Remember that every nasty e-mail or text you send your ex will potentially come back to haunt, and embarrass you, (or worse) should the matter ever proceed to court.

Be as co-operative as possible with respect to any matter involving the children. Whether it’s offering to take the children to medical appointments or to their various activities be actively involved and be reliable. Don’t simply rely upon your ex to keep you informed of your children’s lives.

And be sure to keep copies of every request you make, even if every request for additional access is denied. Sometimes it’s the asking, rather than the result, which can be the most revealing part of the exercise.

Secondly, establish reasonable child support payments, and be consistent. Paying child support will demonstrate that you acknowledge your financial responsibilities, even while you are struggling to establish reasonable access.

Thirdly, live close, if possible, in the children’s neighbourhood.

In my experience courts are often reluctant to order shared custody (especially with younger children) if the parents live far apart. Courts consider lengthy travel time to pick up or drop off children immensely disruptive. In addition if the children are school aged you will need to be travelling to pick up or drop off the children at their school in the event of a shared custody arrangement.

There’s also another factor, if you choose not to live in the children’s neighbourhood. As the children get older they will inevitably want to spend more of their time with their school friends. If your home is somewhere else, you will eventually be seeing much less of your children.

Most importantly,  now that you know how to avoid becoming a casualty of divorce, what are you going to do about it!

 

Absolutely everything – If you do it right!

I’ve seen it all when it comes to do-it-yourself Separation Agreements. And that is definitely not a good thing. Everything from wrongly crossed out paragraphs, crucial missing provisions, to the use of foreign legal terms downloaded from some other jurisdiction. It all makes me shudder.

Nonetheless, when I was recently asked by someone, whether her and her ex should simply prepare their own Separation Agreement, I was temporarily at a loss for words.

So I think it’s about time I came clean on the subject, once and for all.

The most common do-it- yourself Agreements in my experience are pre-printed forms, or on-line precedents, which the person is expected to correctly complete. This sounds good in theory.

That is, if you and your ex perfectly fit the standard profile. Sort of like Barbie and Ken.

But that’s never going to happen. Because despite what may appear to be numerous similarities, just like you and your ex are unique individuals, so is your family law situation.

Using a cookie cutter, one form fits all approach, risks overlooking some essential elements, which need to be addressed and settled. If not, they are virtually guaranteed to re-appear at a later date, causing big headaches.

Here’s just one such example. Parties select “reasonable and generous access” as a term of the Agreement. After all, it seems fair at the time to both parents. What could go wrong?

Unfortunately, since both parties must agree as to what is “reasonable and generous”, it can, (and does) become fertile ground for disagreement, and future litigation.

I won’t even bother commenting on the fact that the vendors of such forms and precedents also take for granted that they’ll be properly filled in, suffice to say this is an unrealistic expectation. After all, it’s not that uncommon for even family lawyers to make mistakes when preparing Agreements. At least your lawyer has professional insurance coverage if they screw up.

So then what’s the problem with preparing the draft Separation Agreement yourself, and then having an experienced family lawyer, such as me, review it?

Nothing at all and that’s an excellent idea, since I always encourage my clients to take a hands-on, kitchentabledivorce.ca approach.

However, in my own experience, by the time I’ve reviewed, and corrected the proposed draft agreement, interviewed you to assess your situation, and specific concerns, and informed you of your legal rights and obligations, and recommended much needed changes, you’ll be much further ahead by talking to me first, before preparing anything!

Unless of course you’re Barbie, (or Ken)!

Child Support Matters! A Primer

 

Important things to know if you’re paying or receiving child support!

In my experience providing family law advice to separating or divorcing parents there are rarely questions asked about how much child support is to be paid. After all the Federal Child Support Guidelines have been around for a while, and are simple to use. Just figure out the income and the number of children and voila, the chart provides the answer. There is virtually no wriggle room in the calculation.

However the same cannot be said for when child support should end. It is not when a child turns 18 years of age, although there are very rare exceptions which I won’t delve into today. Typically, child support end when a child turns 19 years old. Again however, there are exceptions.

The most common, if a child is in full-time attendance at an accredited post secondary educational institution.

But it is helpful to understand that the child support rules which apply for a younger child do not automatically apply when a child turns 19 years old. In particular it will be expected that a child through their own endeavours, ie part-time employment, contribute towards their own educational expenses.

These are called Special Expenses. So for example, child support may terminate when a child turns 19, but if the child is attending school, the child may be expected to contribute one third towards school expenses, with each parent contributing one third. Also, unless specified in a written agreement or court order, there is no rule which limits child to support until a child completes a first degree.

Also, contrary to popular myths a child who is not attending school at 19 does not automatically lose entitlement to child support forever. If that child attends school at a later date they could become entitled to future support.

Since all circumstances are unique, and the consequences can be severe, before you decide to terminate child support, or give up receiving it, consult an experienced family lawyer such as me. It could be the wisest investment decision you’ll ever make.

SHOCK and OWE!

If you are paying child support you REALLY need to read this!!

First comes the SHOCK;

“What do you mean I’m in potential arrears of child support?  I haven’t missed a ____( add your own expletive)  payment in over _____ (add your own number) years!”

{To calculate potential arrears,( sometimes called retroactive support) simply calculate what you have paid in child support versus what you would have paid in child support had you adjusted your child support to reflect prior increases in annual income.}

Next comes the OWE;

“Sure my income has gone up since the date of the Order/Agreement, but I didn’t think I had to pay more child support just because my income was higher. My__________ (add your imagination) didn’t even ask for more money!” {Often the amount of potential arrears can amount to tens of thousands of dollars.}

So there you have it, the typical distressing exchange I have with someone who has been paying child support for some time, usually by way of a court order, or Separation Agreement.

What brings them into my office for a legal consultation? Their ex has either commenced (or threatened) court proceedings to adjust child support, along with claiming retroactive child support.

So just what are your legal obligations if you happen to be paying child support? Courts have declared that it is the right of the child that child support be adjusted to reflect increases in your annual income. In other words it is not your ex’s responsibility to request an adjustment, it’s yours.

Before determining whether you are responsible to pay arrears of child support a Court will look at a a variety of factors, including whether or not the children have experienced any hardship as a consequence of your failure to adjust support.

Of particular importance is your conduct. If you have engaged in any blameworthy conduct, such as delaying or refusing requests to exchange financial information, or providing your ex with false or misleading information, you should expect a very unsympathetic judge.

What do I recommend? Simply make sure you are currently paying the amount of child support that you should be paying, ie based upon your prior year’s income tax returns. If you follow this advice you will never have an issue with arrears of child support.

For anyone who hasn’t, I strongly suggest you call my office, as soon as possible, to arrange a consultation.

Failure To Launch!

To no one’s great surprise, especially you and your spouse, you’ve decided to call it quits, and separate. So now how can you both make the most productive use of your time and money, resolve your legal issues, and move on with the next chapter of your lives?? Read on.

But first, let’s make several assumptions. Your relationship was not violent, or abusive. You and your spouse can still talk to each other in a civil, and respectful, manner. Neither of you feels compelled to rush to court for the purpose of punishing the other (although tempting). Reducing your legal fees sounds better than paying legal fees.

Congratulations, you’ve qualified as candidates for the kitchentabledivorce.ca approach to separation and divorce. 

It’s an approach which encourages spouses, whenever possible, to meet and talk, around the kitchen table, or in fact any table, other than a courtroom table, to hopefully settle legal issues, before launching costly legal proceedings into an unfriendly legal universe. This is definitely one failure to launch which is a very good thing!!

But just what is there to talk about? That all depends on your unique family situation. If there are children most couples begin with addressing child related issues, such as custody, access, support etc. If there are no children there will be issues of assets, and liabilities, and possibly spousal support.

So to assist, I have developed a checklist of key issues, which you can use in discussions with your ex, and over the course of the next several weeks, I’ll be sharing this checklist with you. (As I’ve mentioned before, when someone tells me that they and their spouse have reached an “agreement” it will always be deeply flawed, because many important issues have not been discussed or addressed). Having a completed checklist can also form the basis of a Separation Agreement, dramatically reducing the chance that something critical has been ignored.

Next up – what you need to know and discuss with your ex about the children.

 

 

No.1 Question – FEAR NO DIVORCE!

Here it is after much fanfare- the number 1 question I am asked by separating or divorcing spouses, “Do I really need a lawyer? My spouse says that we should just work it out ourselves and save on lawyer’s fees.”

What this really means is that your spouse has probably already received legal advice and likely been advised that you have significant legal rights. All the more compelling reason to attempt to convince you that you should just settle for what is being offered. After all when was the last time that your spouse was genuinely motivated by your best interests?

In fact to prove that the only interests being considered are those of the spouse trying to talk you of getting good legal advice is the fact in over twenty years of reviewing such agreements, I have yet to find one which was actually fair!! Sadly, for many who believed their spouse and simply signed an Agreement, the damage is extremely difficult to undo.

So just what should your reaction be if your spouse makes such a statement? I suggest telling your spouse that you are capable and competent enough handle your own affairs, including finding out about your legal rights and protecting them.

Now that you’ve heard that taking legal advice from your ex is not such a good idea what next?

Arrange a consultation with an experienced family lawyer such as myself. Bring copies of whatever documents you can in order to calculate both child and spousal support.

The best advice of all, join my kitchentabledivorce.ca client support group for both men and women, which meets every two weeks. If you do you will eventually learn to FEAR NO DIVORCE-especially your own!

For those who missed the fascinating evening with Dr. Elterman explaining the subject of the best interests of children I will be uploading the video sometime next week.

In the meantime if you need to contact Dr. Elterman or need any legal information or advice about  any dispute involving children or grandchildren call me.

Also don’t forget our kitchentabledivorce.ca client support group meeting, for men and women, every two weeks!

KithchenTableTalk – Top Three Topics

In no particular order of importance (since they’re all important) over the next week or so I’ll be blogging about  three of the most common topics of conversation between you, and your separating or divorcing partner. Unfortunately, they are often also the most misunderstood. All of which can create significant legal and financial risk to you. So, to lessen your risk, let’s begin with topic number three.

#3

“I don’t need to pay child support once the kids turn 18 years old.” I hear this statement in my family law practice all the time.  I have no idea why the age of 18 is constantly mentioned during such discussions, apparently people believe the age of majority in BC is 18 years, (the same as Ontario). In fact the age of majority in BC is 19 years of age.

This means that you are required to pay, or to receive child support, to your child’s minimum age of 19 years. But there are also circumstances which could require you to continue paying, or receiving child support, well past your child turning 19.

The most common situation involves your child attending a post secondary educational institution, in which case child support could also include sharing your child’s educational expenses such as tuition, books, residence fees, etc. These expenses can either be shared equally, which makes sense if you and your spouse make the same income, or shared in proportion to your respective incomes.

So whether you receive or pay child support I recommend that you and your former spouse sit down at the kitchen table and discuss what your child’s post secondary educational plans are after graduation. This will obviously require some consultation with your child. Key variables include such things as whether your child will be attending full or part time, whether your child will (or can) work during the school year to offset costs, whether scholarships or loans are available, etc.

Once you’ve done your homework contact me for more helpful information and advice.