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Spousal maintenance - opinions sought
Posted 19 February, 2012, 04:17 PM
#45729
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Hi,

I'm seeking opinions on my ex wife's spousal maintenance claim. The basics:

Married 3 years but separated late last year.

Two kids under 3.

No orders for me to have any time with them and I don't see them at present, but a parenting plan is expected shortly.

I'm on about 130K.

She has both kids full time and gets about $400pw CS, although a COA based on current income would increase this to about $460.

She had total control over our finances whilst married. No explanation of where the 300 odd K I earned during that time ended up, other than the mortgage and normal expenses (no holidays or anything during that time). That leaves a substantial and unexplained gap....

House is under contract with just under 100K left over. I paid the whole mortgage including extra and am still paying it because she says she can't afford it and I don't want to default before it settles. Her contributions were 15K initially (matching my 15K) and about 20K spent on the house.

She has an honours degree and I supported her financially in her honours year.

According to a CSA statement, she earned 8K in interest last FY on money I didn't even know we/she had.

She initially claimed 51K spousal maintenance (she hasn't tried for any super thank god) and has since changed solicitors and is asking for 25K plus all proceeds from the house. My solicitor has advised that because she has the kids full time that she'll get all the money from the house and some S/M. It seems more than unfair that I lose everything and end up in debt. My ex seems hellbent on a quick settlement via BFA (meaning she won't have to disclose anything) and probably doesn't have the money to fight it out in court but my instincts tell me to take it to court as it seems too one sided for her to end up with 100% of the proceeds from the house, plus S/M, but I end up being cleaned out and forced into debt. I'd also consider it worth going to court for the peace of mind gained through her having to disclose where my earnings went during our marriage.

I'd be happy to give her all proceeds from the house and just leave it at that, and alhtough it'd leave me with zero I'm not being greedy, I just want a fair outcome (or S/M being a paid to her through a small percentage I claim from the house thus offsetting any actual out of pocket expenses).

Any advice would be greatly appreciated.

Cheers.
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Posted 20 February, 2012, 03:17 PM
#45797
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She's dreaming big time re spousal maintenance - don't agree to it.

As this is a very short term marriage, what was brought to it is very important.

She could probably claim from your super what she has not got in super since she has been having babies etc...

Future earning capacity needs to be assessed and with an Honours degree she has a great chance of getting well paid employment.

She would be getting 16K for Parenting payment single and 12K in family benefits for the kids each year. Plus child support.

I guess under the 10% percent per child rule she would get 70% of the asset pool at the most.

Don't settle until you have done a proper discovery and have had time to think about it.

You say 300k is gone - I say she is hiding something.
8k interest could be from 150k of assets.

Get some legal advice.
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Posted 20 February, 2012, 03:31 PM
#45800
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Thanks Fairgo. Precisely what I thought. My lawyer seems to be aiming for a quick settlement, not a fair one. His advice was to offer 10K S/M to counter her ccurrent claim of 25K (originally 51K!!!) plus she gets all proceeds from the house (just under 90K). To me, it seems totally unrealistic that she stands to get more than 100% of the asset pool considering I'd have to borrow at least half of the 10K if she accepted, let alone her actual ambit claim. I can only assume that a magistrate or FLC registrar would have a similar view.

My instincts tell me to take it to court or as a minimum settle it via consent orders because until full and frank disclosure has taken place I won't have any peace of mind regarding what would seem to be my now evaporated earnings.

She spent (if memory serves) about 20K on the house during our marriage and maybe half that again for making bedrooms children friendly, prams, cots etc. That was from her money which she had prior to marriage/cohabitation etc. My lawyer worked out that I paid somewhere between 110-120K into the mortgage in that same three years, as well as paying for everything else along the way. I left the house with $800 to my name.

I guess if I had to narrow it down and ask one question of those with suitable experience, can a court actually force me into debt as well as depriving me of the entire asset pool, excluding super? If I lost some of the super from my current fund it wouldn't worry me too much because I'm earning decent money and can increase my contributions, but my military super is defined benefit (and I can't roll in or out of it) so I'm very protective of it. Thoughts?
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Posted 20 February, 2012, 04:49 PM
#45802
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Tell 'er she's dreamin'...
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Posted 20 February, 2012, 05:00 PM
#45804
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Craigo, everything I posted on here is what I've told my lawyer. Any idea why he'd be aiming for a quick settlement?

Something fishy about the whole thing is that her solicitors (she's now up to her third between two firms) insist on BFA's and trying to settle it in a hurry. Correct me if I'm wrong, but BFA's don't require full and frank disclosure as a rule. Me thinks that she's been advised to avoid said process for a reason....our house is now under contract so as far as I'm concerned the ball is now in my court because she wants her share (or all of it according to her) now. I'm in no rush. Any suggestions? I feel inclined to instruct my lawyer, however precarious it may make his position professionally, to retract the offer and just let a magistrate or court registrar apply their precentages/formulae and see how that goes. I can't imagine it could be any worse than losing everything plus being forced into debt.
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Posted 20 February, 2012, 05:17 PM
#45808
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It seems unlikely that a court will find spousal maintenance due and payable. The property settlement is a separate issue. Is your lawyer looking at spousal maintenance in order to reduce the proportion of the property settlement? It's the only reason I can see. If you've only been married 3 years, she hasn't reduced her capacity to earn by time out of the workforce, as has been previously suggested. Marrying someone doesn't automatically create an entitlement to their financial support after the marriage, as once it did when women were less likely to work outside the home.

If she is less skilled than you and hence less able to earn a good income, that is her problem, not yours. She might usefully use the time before the children start school to seek further education/training to improve her chances.
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Posted 20 February, 2012, 05:36 PM
#45809
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My lawyer originally said to aim for 80/20 or thereabouts,  and whatever I got from the house could then be used to offest her S/M claim, but that seems to have fallen by the wayside since her lawyer tried to expedite the process by forwarding another ambit claim, hence my curiosity regarding court. All I want is to start again free of debt. She can have every cent from the house.

Outside the military I have no real world qualifications other than a few mining machines. Nothing tertiary. She is infinitely better qualified than me. It almost feels like S/M has been tacked onto the process as a token gesture purely because people here 'mining' and think $$$. It's not the case as she spent all my money. I really want to test this in court. Good or bad idea?
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Posted 20 February, 2012, 06:04 PM
#45812
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I don't have sufficient expertise to advise you to test or otherwise, I'm sorry to say. Perhaps SPCA one of the SRL-R people might  be able to assist with that.

I'd just comment to the effect that if she is tertiary qualified she has no reason to claim that she is unable to work, regardless of her behaviour with respect to care/contact arrangements or the actual arrangements arrived at.

You two are going to be tied together financially for a long time and the generous property settlement will be a distant memory in 10 years time if she decides to continue to make herself a PITA. Take your share now and give it back as child support. Your kids won't be worse off and you'll be better off.

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Posted 21 February, 2012, 12:14 AM
#45841
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The necessary steps for a spousal maintenance claim

1. Consider the threshold issues pursuant to s.72(1) unable to adequately support themselves.
2. Consider s.74 and the relevant factors in s.75(2) - in this case the kids
3. There is a no fettering principle that allows your ex to have the same pre separation standard of living if your income permits it.
4. Back to s.74 and with 'reasonableness in the circumstances' as the guiding principle.

If there is a property claim as well as a SM claim, the SM will get dealt with after the s.79 claim. Clauson and Clauson (1975) FLC 92-595

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
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Posted 21 February, 2012, 12:25 AM
#45842
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Could you please elaborate monteverdi? To add to the info supplied prior, she has 100% custody of our kids but the only reason for that is because my ex imposes nigh on impossible conditions on my visits so my solicitor advised against in until I have something formal to determine the how/where etc. Does it sound as though her claim would be given consideration in court, given that I'm happy for her to have all proceeds from our house and start again from scratch?
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Posted 21 February, 2012, 12:36 AM
#45843
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You need to go to court for time with the ankle biters. It is in her financial interest for you not to see the kids - fairly standard tactics from single mums club.

SM is usually used as a weapon to be negotiated away.

Last edit: 21 February, 2012, 08:42 AM by monteverdi

Executive Member of SRL-Resources, the Family Law People on the site (Look for the Avatars).   Be mindful what you post in the public areas
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Posted 21 February, 2012, 01:24 AM
#45846
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I agree with Craigo don't give her anything extra as C$A will easily cover it.

If there is only a cash asset pool then there is no reason why you would be in debt after settlement. Just split the cash 70/30 for example and it's all done and each party pays their lawyer out of their share. You can get a splitting order for your super so no need to borrow funds against your super.

Whilst you are sorting out the settlement you should file for interim care orders. Because the children are young you will need a graduated care regime over a few years as they get older. If you are committed to being a dad there is no reason why you can't get at least 40% after two-three years.

I think the lawyers are wanting a quick deal as there is not much in the asset pool for them to take. If the ex is hiding something she will settle before you get to discovery which you should leave until you have agreed on the care of the children.

Good luck
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Posted 21 February, 2012, 05:08 PM
#45890
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If I could borrow upon the experience of those within once more, my thoughts are that I should withdraw that which has been forwarded in response to my ex's current claim (all proceeds from our house plus 25K spousal maintenance) and instruct my solicitor with (roughly, depending on his advice) the following, to be finalised via consent orders rather than a BFA:

75/25 or 80/20 from the house

My remaining percentage to be paid to her as spousal maintenance (meaning she still gets all proceeds and I don't accrue a debt), or in the unlikely event that I end up with any of the proceeds that I pay it as CS.

If she lodges a claim for some of my super, draft a splitting order so that my military super remains untouched, and any exchanges be drawn from my current super fund.

Interim care orders for regular weekly contact, to be increased as appropriate according to their ages and capacity for time away from their mother.



The way I see it, if it costs a few K extra to fight her S/M claim, anything is better than the 25K she's currently demanding (yes, demanding, by repeatedly using the line "It's in the best interests of the children"....seems very rehearsed!), and I will have the peace of mind of knowing whether or not she embezzled any of my income. As mentioned previously, she wants the money from the sale of the house now, so I figure I can use that as leverage to force her into being more realistic, or more accurately, less greedy and spiteful. Any thoughts or feedback are more than welcome.
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Posted 21 February, 2012, 06:37 PM
#45898
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Did your ex wife bring any assets into the marriage?

Is the reason you may be in debt for SM because the defence super is not being included?
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Posted 21 February, 2012, 07:29 PM
#45902
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I have less than 90k super between both funds, and I'd imagine she has marginally less, and of my ten military years we were only married for 3 so her entitlement is by no means huge. She brought money into the marriage, but of that she spent (as a partially informed estimate) about 30-35k on improvements to our house and stuff for the kids. That's it. I'd estimate that in the mortgage alone I paid 120k ball park figure as well as paying for every other expense. All my income for 3 years - gone. Her 8k in interest is a particular concern!

I get the impression she's crying poor to maximize her share from the settlement, and using very dirty tactics to stop me from seeing my kids (conditions for visits, threatening to involve police with no justification etc) thus further improving her opportunity to satisfy her greed.
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Posted 21 February, 2012, 07:49 PM
#45905
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Family law doesn't just consider financial contributions.  Her contributions as a parent, particularly if you were OS for military purposes, would carry the same weight, contribution wise.

Divisions also factor in future needs, and with 2 kids under 3 the needs are quite high at present.

Please don't let this situation deter you from being a big part of your kid's lives.  Money and assets can be replaced, but time with your kids can't.
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Posted 21 February, 2012, 07:58 PM
#45907
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I was deployed whilst we were married, but before we had kids. From said deployment, I paid for her to not work so she could finish her degree free of stress from having to work and study. A portion of my war pay paid extra off the mortgage. I understand your point April and I know it is indeed valid, but it seems as though my contribution (every cent) is being ignored in its entirety.
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Posted 21 February, 2012, 11:00 PM
#45916
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I think if your gut instinct says take it to court then lodge an initiating application with the court. In the early stages she will be likely ordered by the court registrar to disclose all financial information, including bank records,which might show where your money went or is.

Once you are satisfied you have all relevant info then you will be in a better educated position to negotiate.

In my OH's case the court registrar was very good at laying it on the line and telling his ex there was no way any judge would give her what she was demanding, one of her demands was spousal support, registrar told her she was dreaming. The registrar even got stuck into the ex's solicitor for encouraging her to be greedy.

Unfortunately the ex has refused to listen to the registrar or the magistrate at the pre trial hearing, so it's going to trial.

It cost us about 8k for the for a solicitor to represent my OH at the 3 conferences. We can't afford him for the trial but the work he has done has prepared my OH well enough to now self rep.  The ex's solicitor just dumped her, cause of her irrational behavior so it will level the playing field in the court room.

Even if your ex has the children, majority care, you still need to be able to provide for them when they are in your care, so should not be left destitute if there are enough assets to split to allow an equitable and fair outcome for both parties.  
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Posted 22 February, 2012, 01:33 AM
#45922
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Yes withdraw the other offer as I think you are now on the right track Sleepy although you are being too kind re the S/M.

I guarantee you will kick yourself over this in the future.

You will pay child support regardless the outcome of the property settlement until the children reach 18 yrs.

Spend a lot of time re orders for the care of your children and try to flush out the reason for the 8K investment income.
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Posted 22 February, 2012, 08:06 AM
#45927
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Many thanks for your replies folks. I appreciate the time each of you put into responding. Although I won't provide identifying specifics as this progresses for privacy reasons (and potentially subject to a decision of a court), I will share my experiences once this has been finalised in the hope that I can offer something for others who may find themselves in a similarly challenged position.
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