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    I have been separated since Oct 05, after 22 years of marriage. When I was asked to agree to a separation agreement, I was mislead to believe that he would stay in town, and live on his own. I had to push to have the benefits remain for two years and then to be reviewed at that time, but he did not want me to touch his pension. Because I was in denial. I thought we didn't need this agreement, let alone talk about his pension. Needless to say, we bought a separation agreement kit, and had a mutual friend witness it. Less than a month after the separation, he moved in with a woman he works with. My question is...I would like to amend this agreement and believe that I am entitled to half of his pension. He has not asked for a divorce - yet - but I would like to be prepared for it, and know what I am entitled to. He makes a significant amount of income in comparisson to my income. I had just re-entered the workforce after 13 years. To make a long story short, he is not hurting financially, and neither is she. Any suggestions or comments will be helpful.

  • #2
    Originally posted by alwaysbusy
    To make a long story short, he is not hurting financially, and neither is she. Any suggestions or comments will be helpful.
    I don't know what I was thinking when I typed that. I got sidetracked I guess. It's nothing new lately.

    Basically, my question is: does anyone know if it will be difficult for me to ammend the separation agreement when the time comes?

    Comment


    • #3
      Hi alwaysbusy,

      Welcome to the forums. Sorry to hear about your situation.

      Upon separation, a party is entitled to half of the pension amount accumulated by their spouse during the marriage. I find it highly unlikely that your husband would agree to amending the agreement since he seemed to have worked so hard to get you to waive your right to half of his pension. You will likely need to ask that the agreement be invalidated based on the fact that you had not obtained independent legal advice from a lawyer before signing and, as such, you were not fully aware of your rights (and the rights you were signing off on). The fact that the agreement was not prepared by a lawyer works in your favour.

      You would also be entitled to spousal support. The fact that your husband is living with his girlfriend will increase his means for support, and it seems that you have a need since you have had to re-enter the workforce after 13 years of not working (or possibly only working part-time). Please visit the following links for more info on separation in Ontario:

      Spousal support
      Property division

      I suggest you meet with a lawyer and discuss what steps you can take.

      Lindsay

      Comment


      • #4
        reply

        Thanks for your reply. I do receive child and spousal support, so that is not an issue. He has been employed with the same company for 20 years now, and I know that I am entitled to half his pension. I did speak with a layer before we even wrote up the agreement, but was disappointed with him, because he literally wasted my time in the meeting. I had written down all the information he would need ahead of time so that we would not waste time, and he didn't want it, he asked me the same questions that I had written down for him. (how long we were married, ages of the children, my income, his income, etc.)
        What I would like to know is - because I was mislead before signing the agreement, and because the agreement was not actually signed by a lawyer, will it be difficult to have this amended?

        Comment


        • #5
          always busy,

          Having a lawyer sign the separation agreement would not necasarily make it a valid agreement. The lawyer could act as a witness, but if the lawyer is retained by one party, the lawyer cannot act for both. This is a conflict of interest.

          Please read PART IV of the Family Law Act R.S.O. 1990 c. F.3. in regards to separation agreements.


          http://www.e-laws.gov.on.ca/DBLaws/S...sh/90f03_e.htm

          54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,

          (a) ownership in or division of property;

          (b) support obligations;

          (c) the right to direct the education and moral training of their children;

          (d) the right to custody of and access to their children; and

          (e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).


          Form and capacity

          Form of contract

          55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).

          Setting aside domestic contract

          (4) A court may, on application, set aside a domestic contract or a provision in it,

          (a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

          (b) if a party did not understand the nature or consequences of the domestic contract; or

          (c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).


          lv

          Comment


          • #6
            Hi always busy,

            The fact that your husband promised to live in the same city and alone and then went back on his word really has nothing to do with his pension. If this matter went before a judge, telling him/her that you're going after your husband's pension because he broke this promise would not go over well. The point is that both you and your husband have the right to move on to new relationships after separation. I suggest you just stick with the fact that you didn't receive proper legal advice from a lawyer.

            An amendment can only be made if both parties agree to amend. Most agreements contain a dispute resolution section, which allows the parties to mediate or arbitrate any contested issues. However, the dispute resolution sections usually only apply to reveiwable aspects of an agreement. The pension section of your agreement likely uses words such as "forever" or "now or any time in the future." This would not make it a reveiwable section and as such the agreement would need to be invalidated for you to obtain your pension entitlement.

            In short, it's difficult to comment without looking at the agreement. I suggest you meet with another lawyer (obviously not the fellow you met with before!) so that he/she may review it in detail and give their opinion on the possibility of amending or invalidating the agreement.

            Lindsay

            Comment


            • #7
              reply

              I'm sorry this must seem confusing, but my situation would take far too long to explain. Basically, I know now that I was in denial when those papers were signed and was taken advantage of. I realize that his pension has nothing to do with him lying, and I'll assume that it looks like I am going after his pension because of it, but realistically, that is not how it is. It has taken me a long time to realize I was taken advantage of. I feel like giving up on this but I am glad that I enquired about it because it shows me that I am misunderstood, and that I need to find the appropriate words to explain my situation, and hopefully get what I am entitled to.

              Thank you all for your advice.

              Comment


              • #8
                Hi alwaysbusy,

                Sorry about that.. I wish I could have been more helpful! Best of luck in proceeding with your claim. I think you will feel a lot better once you speak with a good lawyer.

                Lindsay

                Comment

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