stbx seeks mod of temporary, is that likely?

[disneydad]

According to my temp orders, I pay the mortgage directly, along with giving her money each month. She has temp primary and I'm out of the house. Been doing that since late 2011 while I fight for time with my kids through court towards a permanent.

Temp order also called for the house to be sold, and now it's under contract and closing soon.

STBX attorney just filed an emergency motion to mod the temp order, saying I need to switch from paying mortgage to paying STBX's rent on an apartment since we're still under the temp. The temp order says nothing about switching to paying rent if the house has sold. Her position is that it's implied I would pay for housing for her and kids.

STBX didn't work when temp order was filed, but now has 2 part time jobs and can supplement the money I pay with that income. She can likely find an apartment around here for about 1/2 the cost of the mortgage and utils at the old house. Her only obligations would be rent, utilities, groceries, gasoline, car insurance, and a $500/month credit card bill. And stuff for the kids, but they have plenty of clothes and all that.

Do you think the judge is going to force me to pay her rent even though what I am giving her outside the mortage payment is PLENTY to live on, and when added to her two part time jobs is actually around 65K/year? I would think the court would rather hear of us coming to a final settlement.

[Anything4Her]

Her position is that it's implied I would pay for housing for her and kids.

In other words, she knows it's not in the court order and is trying to convince you to do it anyway.

I don't know what the judge will rule, but I wouldn't be giving her a penny more than was ordered.

[minuette]

I think the judge will force you to pay her rent UNLESS you have all your documentation lined up regarding her other sources of income and available housing.

The circumstances have indeed changed in more ways than just the sale of the home, since she should be able to pay for her own rent given the information you've provided. However, she may very well claim that her housing expense will be the same no matter what. She will probably submit docs showing that the only comparable housing is approximately the same cost. Are you ready to show that comparable housing to the children's current home is available at half the cost? Note the word children - that will be the tack she takes if she's savvy, that the replacement housing must be equivalent to what the children are moving out of. See, it's not about her, it's about TBIOTC.

[kmich91262]

I think the judge will force you to pay her rent UNLESS you have all your documentation lined up regarding her other sources of income and available housing.

The circumstances have indeed changed in more ways than just the sale of the home, since she should be able to pay for her own rent given the information you've provided. However, she may very well claim that her housing expense will be the same no matter what. She will probably submit docs showing that the only comparable housing is approximately the same cost. Are you ready to show that comparable housing to the children's current home is available at half the cost? Note the word children - that will be the tack she takes if she's savvy, that the replacement housing must be equivalent to what the children are moving out of. See, it's not about her, it's about TBIOTC.

To build onto Minuette's post, you should be able to hand the courts documentation of such housing cost. For example when I was first starting my divorce way back when, I was advised by my attorney to pull up at least three advertisements (for example apartment advertisements showing the rent for XYZ bedroom apartment) based on what the NJ would need. For example NJ would have needed at least a 2 bedroom apartment, so that is what I pulled up and did an average comparison which was then turned into the courts as documentation why we think it should be XYZ amount. Low and behold the temp alimony/CS amount ended up being pretty darn close to what was researched. Just food for thought.

[disneydad]

Great perspective on discovering the rent in the area and working up a sample budget. I'm pretty sure she's planning on a 3 bedroom apartment (we have 2 kids).

I plan to also bring in pictures of my temporary place which is nowhere near as nice as the marital home, because I had hardly anything left over after paying her monthly amount plus mortgages.

I also have her bank statements showing how she liked to continue to shop at Whole Foods, eat out, and get her nails and hair done. Should be an interesting morning in court.

[disneydad]

Hearing on this is next week. My lawyer is telling me he doesn't know which way the judge will lean. If the court considers the "spirit" of the temporary agreement, the wording implies that by agreeing to pay the mortgage, I am also agreeing to pay for her housing after the house sold, even though that's not spelled out in there. So me continuing to pay makes sense, and the court's not going to cut her and "the children" off, so she'll take that sympathy track.

My position is that her monthly temporary support should be based on actual need, around a budget. So far she has not produced a budget, nor reported what her new income is. I've had a lot more expenses since this started than she had, so I need to keep more of the money too.

We probably have another 6 months at least in the temporary, due to a custody evaluation I just motioned for.

*sigh* I guess I could offer her a few hundred dollars more per month to see if she takes that to stay out of court.

[disneydad]

Not to troll my own post but here's an update.

In the end my lawyer said it's too risky to go in front of the judge because he couldn't predict which way he'd rule. So I'm paying less than the mortage but more than zero to her while we deal with the last few months before trial, due to the fact that I have a hearing pending for a motion to assign a custody evaluator.