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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 08-02-2010, 04:54 PM
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My wife and I still live in the same house and are in the process of working out a separation agreement and retaining lawyers etc. I have always been a good father to my children and over the 7 years of our marriage I do spend somewhere between 60-70% of the time with the kids.

My wife had an affair which in turn has brought us to this point. We have tried to reconcile to with no success. We both take a share of the blame for what has happened but my wife is very upset with me that I don't want to keep trying. I feel some of her demands are out of revenge and spite. She wants sole custody of the children while allowing me access (she acknowledges that I will be with the kids half the time anyways), she wants approx. $1300 - $1500 combined child and spousal support. This seems like a hell of a lot to be giving up considering I still have to provide for my kids and have a place to live.

I make approx. 20-25,000 more a year than her but her salary is starting to catch up. She is a nurse and needs me to watch the kids a lot because of her hours.

I feel like I have a good case for joint or shared custody but until I talk to a lawyer I have no idea. Her demands will take almost half of my income. She also wants to keep our 4 bedroom house although I know I am entitled to half the marital home.

Any ideas on how she achieve sole custody when I have been a good parent who spends more time with the kids?

If I can get shared or joint custody
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Old 08-02-2010, 10:26 PM
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Bluntly, there are three issues here, and they are SEPARATE.

Child Custody - if you spend half the time with the kids, and she acknowledges this, don't go for anything but shared/joint custody, with each having say in decision-making and each having half the time with the children. That's best for children, and there's no reason for her to demand sole if she intends to have you look after them that frequently anyways. Heck, if she works weird shifts due to her employment, YOU should have the majority of custody and she can have them for overnights when she's got days off.

Child Support - this cannot be part of negotiations or demands. It is a right of the children and it is not up to you to give it up or work it into any other arrangement or be blended in with spousal support. It's calculated automatically based on the type of custody and the salaries of the parents. It should be recalculated every year because salaries change. If you end up with more than 60% custody, which it sounds like you may, you will owe her nothing and she will owe you full amount based on her income. Likewise, if she ends up with more than 60%, you'd pay full amount based on your income. If you both end up with between 40%-60% you will technically each pay the other the full amount, however this is done by having the higher income parent pay the lower income parent the difference, called offset amount.

Spousal Support - this is meant for a spouse who has a much lower salary than the other, or has made career sacrifices for the other's benefit, such as being a stay-at-home mom, and is intended to help that person out until they can become self-sufficient. If the marriage was long enough, it may not be finite. If she's got a good career as a nurse, she doesn't need spousal support.

Her affair and the reasons for the marriage breakdown do not really figure into these three preceding negotiations. So don't let her guilt you into complying with these outrageous demands because you don't want to "keep trying again" aka put up with her lies and manipulation longer. You did keep trying plenty already and she didn't reciprocate. And then she HIT you! More trying just sounds like it would be painful! And dangerous! You probably don't want to discuss this with her as that would become a heated argument quite rapidly. Just tell her you understand her demands, and you'll be preparing yours with the aid of your lawyer.

Your counter-offer should be to have joint custody for decision-making and primary residential custody of the children so she can work her job, child support as per table amounts which would be her paying you as it sounds like you'll have the kids more than 60% of the time, and no spousal support as she has a good career and you anticipate her salary exceeding yours within a few years.

Actually, there are four issues, as property division/equalization will hit eventually too. But wait till later to bring that up with her, just think about it in the meantime, or you'll just be adding another level of strife to the mix. If you are ending up with the kids the majority of the time, it should be you who keeps the house because it's stability for them. If you can still afford it on your income, that is.

Can we tell I recently checked out Surviving your Divorce from the library?! Get as educated as you can before you meet with your lawyer, otherwise you'll be paying $300+ an hour to learn all this stuff from him. The more prepared you are, too, the less likely you will be to agree to her demands in a moment of vulnerability.
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Old 08-02-2010, 10:30 PM
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Her best bet to achieve sole custody is to hit you with a false assault charge, and then while you are in jail she goes for an emergency motion to gain exclusive possession of the house and interim custody of the children.

Then while the assault case is dragging out, she delays the separation process every step of the way until about a year has gone by, and then she files for sole custody based on status quo, the fact that the children are settled into the current routine.

Then she keeps the kids overnights but has you watch them after school and evenings which she will claim won't count toward your hours. She gets free childcare and you get stuck paying full table amount.

I'm not exagerating, there are cases where exactly the above has happened. If she doesn't do the above she has NO case at all for sole custody.

As I recommended before, go to the hardware store and buy a door lock, install it on a small room in the house, move your personal belongings and financial records in there and sleep in there, on the floor if you have to. Your ex does not go in under any circumstances. You go to the bank and freeze or close any joint bank accounts or credit accounts. If you have no joint accounts, then inform the bank in writing anyway. To be considered separated you have to take public steps to inform the community that this has happened. Send your ex an email so you have a record, mentioning that you are formally ending the marriage and consider yourself separated, you will stay in the residence and you are expectin her to as well for the sake of stability with the children. Don't ask, don't flip flop, don't be vague, assert what is happening. It is not "going to happen", it IS happening. Be business like as though you are writing a formal letter to your bank manager. You are creating a paper trail and establishing the date.

You have a recording device by now that you carry at all times. You do have it by now. You are carrying it at all times.

Be prepared to charge her if she attacks you again, and make bloody sure your recorder is on.

In the meantime, TALK TO THE CHILDREN. If you aren't sure how to go about it, we'll start another thread about talking to the children, we have all done it. They need to know that you and mommy are separating. They need to know that it is because mommy and daddy are fighting about adult things and it has nothing to do with them. They need to know that they will still have you as a daddy forever, and they will still have mommy, and THEY WILL SPEND TIME WITH YOU BOTH EQUALLY. Make this clear to them from the start.

From this point on your shared parenting regime has begun, you are now separated and you are equal joint custody and equal physical custody. Inform the children's school or daycare, inform their doctor. Inform any independant third party you can think of that you are separated and you have joint physical and joint legal custody. Put it in writing and date the letters and send them.

If she challenges you, you will trace the status quo of shared parenting back to this. In fact you will trace to the children's births, but in terms of separation you will assert that it began immediately upon the date of separation.

Keep as involved as possible with the children, spend all your time with them, take them to school/daycare, to the dentist, to the doctor, on playdates at their friends houses where you will hang out with the other parents. Be seen with them, daily, and without being manipulative, you are acting so that you can get sworn affidavits from al these individuals if necessary.
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Old 08-03-2010, 09:15 AM
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Great answers and they definitely clarified some things I needed to know. Of course I will speak to my lawyer, hopefully today, and start working on a plan. Living in the same house is very difficult and the amount of guilt I feel over the situation is not helping. On top of all that she is constantly talking about her rights and what she is entitled to etc etc....it seems almost as if she is trying to scare me into staying but its not going to work.
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Old 08-03-2010, 09:26 AM
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Originally Posted by Mess View Post
Her best bet to achieve sole custody is to hit you with a false assault charge, and then while you are in jail she goes for an emergency motion to gain exclusive possession of the house and interim custody of the children.

Then while the assault case is dragging out, she delays the separation process every step of the way until about a year has gone by, and then she files for sole custody based on status quo, the fact that the children are settled into the current routine.

Then she keeps the kids overnights but has you watch them after school and evenings which she will claim won't count toward your hours. She gets free childcare and you get stuck paying full table amount.

I'm not exagerating, there are cases where exactly the above has happened. If she doesn't do the above she has NO case at all for sole custody.
There have LOTS of cases where this has happened. Some family law lawyers will their clients to do falsely allege abuse, although they would never be caught on the record giving that advice.

From what you have written about her and her BF, I'd say you are in great danger of this happening to you.

Although I don't like the effect on the children of hunkering down in a locked room in your own home, I don't know what else you can do to protect yourself in the circumstances. I would add that you move swiftly on the separation agreeement. If she is unwilling to negotiate, and she will be unwilling from what you say, you should seriously be considering gettting into court really really ASAP.

You need to get a negotiated settlement of custody and access ASAP in order to allow one or both of you to move out of that house, more particularly for you to get the hell away from that lunatic.

You are in a toxic environment. When you board yourself up in your own home in front of those kids, it's not going to be cool. Get a settlement and get separated.
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Old 08-03-2010, 09:39 AM
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Originally Posted by dadtotheend View Post
There have LOTS of cases where this has happened. Some family law lawyers will their clients to do falsely allege abuse, although they would never be caught on the record giving that advice.

From what you have written about her and her BF, I'd say you are in great danger of this happening to you.

Although I don't like the effect on the children of hunkering down in a locked room in your own home, I don't know what else you can do to protect yourself in the circumstances. I would add that you move swiftly on the separation agreeement. If she is unwilling to negotiate, and she will be unwilling from what you say, you should seriously be considering gettting into court really really ASAP.

You need to get a negotiated settlement of custody and access ASAP in order to allow one or both of you to move out of that house, more particularly for you to get the hell away from that lunatic.

You are in a toxic environment. When you board yourself up in your own home in front of those kids, it's not going to be cool. Get a settlement and get separated.
Yep, that's where we are at right now, I try and avoid her as much as possible. For this week we have agreed on what nights she or I has the house and the other person stays out. That is a short term solution but I'm on my lawyer to help me get something formal worked out so that I can leave the house without getting punished for it.
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Old 08-03-2010, 09:48 AM
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Teddi,
All the advise you have received regarding spousal assult and criminal charges is right on the money. There is also a form of child abuse which includes: Emotional abuse involves harming a child's sense of self. It includes acts (or omissions) that result in, or place a child at risk of, serious behavioural, cognitive, emotional or mental health problems.

I don't recall your children's ages, but in my opinion your wife bringing her boyfriend into the home while you are there and engaging in activies might fall upon the later. How confused your children must be.

In my opionion you should have the police document what is going on, so it is on the record or make a sworn statement to the Justice of the Peace asking for a peace bond to keep her away from you. I know there is always two sides to a story, but reading what you have posted makes me wonder about the well being of the children. What about the option of you getting full custody and making her leave the house? Due to the circumstances, it sounds like you are the parent with the best interest of the children.

You not reporting the crime at the same time is not setting a good example for your children if your wife is beating on you. What example are you setting for your children? You are saying that it's okay and that men should tolerate this abuse.

Why would you not want to keep the house and children and let your wife move in with her boyfriend? I think that you should look into getting some counselling for you and your children right away.

Just my opinion.
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Old 08-03-2010, 10:57 AM
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Why would you not want to keep the house and children and let your wife move in with her boyfriend?
You're right, but she isn't going to go for that, at least not voluntarily. And you're right about the counselling too.
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Old 08-03-2010, 01:58 PM
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Originally Posted by Great Dad View Post
Teddi,
All the advise you have received regarding spousal assult and criminal charges is right on the money. There is also a form of child abuse which includes: Emotional abuse involves harming a child's sense of self. It includes acts (or omissions) that result in, or place a child at risk of, serious behavioural, cognitive, emotional or mental health problems.

I don't recall your children's ages, but in my opinion your wife bringing her boyfriend into the home while you are there and engaging in activies might fall upon the later. How confused your children must be.

In my opionion you should have the police document what is going on, so it is on the record or make a sworn statement to the Justice of the Peace asking for a peace bond to keep her away from you. I know there is always two sides to a story, but reading what you have posted makes me wonder about the well being of the children. What about the option of you getting full custody and making her leave the house? Due to the circumstances, it sounds like you are the parent with the best interest of the children.

You not reporting the crime at the same time is not setting a good example for your children if your wife is beating on you. What example are you setting for your children? You are saying that it's okay and that men should tolerate this abuse.

Why would you not want to keep the house and children and let your wife move in with her boyfriend? I think that you should look into getting some counselling for you and your children right away.

Just my opinion.
Yes I have definitely gotten a lot of good advice and I'm certainly trying to follow as much of that advice as I can while at the same time trying to contact my lawyer to get his take on things. I have booking counselling for myself which starts later this week. My wife and I have agreed to nights that she is in the house and nights that I'm in the house. On some of the nights I have been out of the house I know she has had the other guy in the house but she would never dare bring him to the house when I am there...at least yet. When we were in marriage counselling over the winter, the counsellor was adamant that introducing another man into the kids life was just plain wrong at this point in time....a point I had been making for a while.

I am literally waiting by the phone for my lawyer to call as I want to know what I can do at this point. My lawyer and I both agreed that we shouldn't have a large battle on our hands as my wife and I should be able to resolve these issues. One thing I like about this lawyer is he doesn't want this to go to court. The only asset we have is the house. The only sticking point is the custody/access agreement which I have a very good case for joint. I hope he calls soon.
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Old 08-03-2010, 04:02 PM
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The one mistake a lot of people (generally men) make is to leave the home before a custody/access agreement has been put in place. I agree with the guys above, do not settle for anything less then joint custody with 50/50 access. Child support and Spousal support are separate issues and you should speak to a lawyer about them as soon as possible. -- Good Luck!
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