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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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  #1 (permalink)  
Old 03-01-2011, 09:02 AM
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Default Revisiting Division of Property after Affidavit

Simple isn't always my strong suit but:

I have been separated for over a year, two children, shared/joint custody and, though it doesn't matter, the separation, which was predicated on us just "not getting along", was one I didn't want (though I no longer wish to reconcile and she does).

At the time of separation, in an effort to make sure the house remained affordable for their mother and allow me to buy and maintain my own home we signed an affidavit stating that:

- I would only take 1/4 fo the equity built up in the matrimonial home (half of my half) and give up all claim to the property
- we would not be paying each other any spousal support
- we would not be paying each other any child support
- we would not hold any interest in each others pensions

I also took over the entire car loan (not mentioned in the affidavit).

We had no other debt or holdings. And do not have a formal separation agreement.

Present situation:

- she has mentioned spousal support
- we have discussed child support
- she is thinking of selling the house

As for Child support, despite the fact that I agreed to walk away from the equity in the home because niether of us would be burdened with paying child support, I'm willing to pay the differential (the difference between what we would be paying each other based on The Federal Child support guidelines if either of us had sole custody). Hey, it's for the kids.

My questions relates to the strength of the affidavit:

I had pretty much resigned myself to the idea that our financial issues were settled but, to anyone who has had to revisit a division of property:

1. Seeing as we signed an affidavit to no spousal support, would her asking for it now require a legal challenge to the document?

2. Is it automatically revisited at the time of divorce?

IF it is revisited:

3. If she were to ask for spousal support, (at the time of divorce or otherwise) would the equity in the home and the car debt I burdened become part of the equation?

4. If she sells the home, am I entitled to rest of my equity or is it a done deal?

Hope that's not too confusing.

Many thanks
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Old 03-01-2011, 12:20 PM
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Quote:
As for Child support, despite the fact that I agreed to walk away from the equity in the home because niether of us would be burdened with paying child support, I'm willing to pay the differential (the difference between what we would be paying each other based on The Federal Child support guidelines if either of us had sole custody). Hey, it's for the kids.
The very fact that this is present in your agreement would indicate to me that you didn't have legal representation when it was done. You CANNOT sign away Child Support...it's NOT your right...it's the right of the child. No lawyer worth his salt is going to word it like that, and no judge would sign off on it.

She CAN go after you AT ANY TIME, for Child Support, even with you walking away from the home. She will likely get it if she pushes it. With the amount of time you have the children, you should be paying offset table amounts.

Quote:
1. Seeing as we signed an affidavit to no spousal support, would her asking for it now require a legal challenge to the document?
Did you both have independent legal advice when you did this? How long were you married for? Did either of you give up a career for the other? Did she quit working and stay at home? What kind of education does she have and would she be capable of earning a living? Does she currently work? Full or part time? How much does she earn? How much do you earn? Who currently collects the CCTB/UCCB? Did you file form RC65 with CRA yet?

Answer those and we'll have a better idea of an answer for you

Quote:
2. Is it automatically revisited at the time of divorce?
Unless you sever those items, then in order to divorce you need a couple of things worked out already. 1. Child support 2. Custody/Access 3. Equalization.

Quote:
3. If she were to ask for spousal support, (at the time of divorce or otherwise) would the equity in the home and the car debt I burdened become part of the equation?
Yes, as part of equalization. It depends on how binding that affidavit is. Was it done through legal representation? Did you both have independent legal advice? Was it filed with the courts?

Quote:
If she sells the home, am I entitled to rest of my equity or is it a done deal?
It all goes back to how binding that document is. If she sells the home and THEN tries to go after you for spousal support, then yeah, you can hit her up on the whole assets/equalization thing.
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Old 03-01-2011, 12:46 PM
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More info:

As for Child Support, she doesn't have to push for it. As it is, i've been the one walking us through setting up the payments.


"Did you both have independent legal advice when you did this? How long were you married for? Did either of you give up a career for the other? Did she quit working and stay at home? What kind of education does she have and would she be capable of earning a living? Does she currently work? Full or part time? How much does she earn? How much do you earn? Who currently collects the CCTB/UCCB? Did you file form RC65 with CRA yet?"

- affidavit was signed with a lawyer but without independant legal advice
- affidavit not filed with courts
- married eight years
- we have both worked, consistently, full time, throughout the marriage and continuing still (neither of us staying at home at any point)
- both university educated
- we earn within 10k of each other - $76/$86
- filed the RC65 last year
- paperwork for CCTB/UCCB in but payements have yet to be split
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Old 03-01-2011, 03:14 PM
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Stop using the term affidavit, it is confusing you and will continue to confuse others. At best it is a contract.

You didn't receive independent legal advice. However if you dawdle and do nothing, or if you receive advice and don't persue any changes then the agreement starts to carry more weight. Your strongest legal position is to act soon, obtain the opinion of a lawyer (so that you can show that you obtained independent legal advice) and then contest the agreement.

This agreement puts you in a terrible position, as NBDad said she can come back at any time for child support, she can come back and seek spousal but she still has the house and you've lost your equity.

Act now. Why on earth would you hand over thousands of dollars to avoid paying spousal support and then have to pay spousal? Why would you give her equity in the home so the children can stay where they have been raised, and then watch her sell and pocket the money?

You don't mention this but where would she be moving to? Will you both remain in the same school district? You should be certain of this, if she tries to move out of the district and you have problems getting the children to school this will compound your problems.

See a lawyer NOW. Immediately send her notice that the agreement is void and seek fair equalization of the property. Inform her that if she wants to negotiate, you expect a settlement that is going to SETTLE your issues so that you don't have to go through all of this again in a year.

You can see a lawyer for a 1 hour consultation either for free or for little cost; you can call the Law Society and get a referral to a divorce specialist lawyer for a free half hour consultation. Most lawyers will give you an hour.

Before you go get all your records in order to save time and answer the lawyer's questions in a few minutes, so as to make the most of your hour. Be clear with yourself what kind of settlement you want. Don't let your lawyer push you into reopening something that you are happy to leave settled. Feel free to insist with the lawyer that you liked the original agreement and you want it ratified so that it's legally binding, if possible (the child support clause cannot be binding.)

Don't throw away your house equity unless you get a binding settlement on spousal in return, along with a binding agreement on the mobility of the children. Your ex can move anywhere she wants, but she cannot arbitrarily move the children an unreasonable distance. It is reasonable for you to seek that the children remain in their original school district unless both of you agree to a move.

According to your numbers she has no hope of getting spousal support from you, but you do want a binding clause on this to give you peace of mind. You are in every position to stick to you guns here.
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Old 03-01-2011, 03:55 PM
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The response is very much appreciated.

While I have spoken to two different lawyers on various matters, both seemed similarily puzzled with the document we had signed. That being said, the document was signed over a year ago and it has remained status quo since that time. Both of the legal opinions I obtained (costly, as only one was free) mirror what you have stated above.

Child support payments will be normalized by the end of the month as she has finally provided me with income information. This will also be supported by the living arrangment forms which we signed showing us as having shared custody of the children since the time of separation.

As for her moving the children, I have contacted the school board and advised them of our joint custody arrangement.

At this point, as it is, it really is a matter of formalizing our arrangements. I had, mistakenly so, been under the impression that what we had signed carried more weight than it does.

Thanks again
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Old 03-01-2011, 05:14 PM
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What you signed is not worth the paper it is written on, at least in terms of family court.
Follow the advice above and hopefully everything will work out as easily as the first time.
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