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  • Common Law Custody and asset division

    Hello, new to the site here. I am just looking for a bit of advice (like everyone else here) I hope someone who is going through the same thing can help.

    I am a mom of 2 sons from 2 different relationships. My oldest son's dad and I broke up when he was 1 yr old. I got sole custody and a small amount of monthly child support based on his dad's income at the time. His dad's income has increased significantly over the last 15 years, but I have never gone back to court to get more. I am not interested in that hassle and am just not the kind of person to stir up things after all these years. I managed just fine without much financial help from him.

    9 years ago I met my current common law partner with whom I have a second son.(we have lived together for 6 yrs) Our relationship is at its end, though he is refusing to accept it, and threatens me daily with taking away our son from me, and forcing me to pay support. (he pays support for his 2 kids from his first marriage and says there is no way he can help, so he would just take custody and have me pay him) He has never been our son's caregiver and I can't see this happening but I am still afraid of his threats.

    My name is on the house but he put down the whole downpayment. I told him if we sold the house he could keep the downpayment and we could just split the remainder. He says I don't have any claims to the house since he makes the mortgage payment. Is this true? Does my name have to be on the deposit cheques?(I pay all daycare and food costs). I make less money than him but put my whole paycheck to household needs etc and even buy clothes, gifts etc for his other 2 kids. I do all cooking and cleaning and am the sole caregiver for our son, as well as when his kids come to visit. I feel I am an equal contributor overall.

    If(when) we do split up I know I won't be able to financially support both my sons on my own. Am I entitled to ask for support for my older son as well or would I have to back to court to get more support from his dad?
    If I get custody, will I be able to get any child support for my younger son? I think I read somewhere that his first kids get support first and I might not get any for our son together.

    I know I have to call a lawyer, but before I do, I just want to see if anyone has experienced the same issues and wonder how they were reolved. Thanks

  • #2
    Hi Mom:
    I definately am not a lawyer, but I have been through two divorces and have three children by two different fathers.
    From what I understand, the house, regardless of the down payment and who makes the mortgage payment is the property of you both parties and would be treated as so in the courts.
    If he also acted as a father figure to your eldest, you could also claim support for the non-biological child as well as for the child you share. There may also be spousal support that may be obtained until you are able to get yourself situated.
    Don't be afraid of threats. Arm yourself with information. Check webites and go to your local Court office and ask for an appointment with the family law services.
    Set up a plan. Make sure you have copies of bank statements, asset statements, copies of income tax assessments.
    open a bank account of your own and put a little money away whenever possible.
    don't rush to put a plan in place if there is no inherent danger. take your time to plan ahead for the worst case senerio.
    Don't worry...and don't feel threatened.

    Comment


    • #3
      I think that if you need more support for your first child, then you should get it from the biological father. The biological father should be paying child support based on his income.

      Your current spouse should pay child support for his biological child based on his income and consider his other child support payments. He sounds like he is using custody as a threat, rather than a right, meaning he really would rather you raise the child, he just doesn't want to pay for it. If this is true then you should have main custody, otherwise perhaps some other custody arrangement be done (50/50), however because you have two children, separating them may not be a good idea if they are close in age, which it sounds like they are not.

      I do take exception to you calling your self the 'sole caregiver'. I know what you mean, but his efforts toward the family cannot be ignored and you are in fact both caregivers.

      Your name is on the house means that you are a part owner of the house. It seems pretty clear to mean that you should own half the equity of the home ((value of home - mortgage) / 2), after he is repaid his downpayment. He should get his down payment back as you are common law and not married.
      Last edited by billm; 08-12-2009, 12:21 AM.

      Comment


      • #4
        Thank you MaggieT. I appreciate you being able to decipher my rantings and give me a straightforward opinion and some advice. Being in the middle of the turmoil it is sometimes hard to replace my fear with logic.

        Comment


        • #5
          Billm- thank you as well for your advice and opinion. About the support for my first son, yes I agree, and don't expect my current partner to have to provide support for him. I was just looking at what the courts would consider, etc.
          I am not denying that my partner is our son's parent and does play an important role in his life. I didn't provide all of the information in my note as to why I am the "sole caregiver" for our son, but it is true in that my partner plays no role in the "care" aspects of things. He refuses to "babysit", feed him, dress him etc. I am not trying to bash him, it is just how it is, and I am scared of his threats of taking my son away when I know in my heart it is not in our son's best interest. I knew my partner when he went through a custody "battle" for his first 2 children, so I know how distressing and seemingly unfair things can be for dads. I don't want to have that happen for him again. I guess my best bet at this point is to contact a lawyer and get the facts but I am glad you took the time to reply and appreciate you providing both perspectives.

          Comment

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