Motion for sale of the matrimonial home.

[Hatingit]

Long story short.

I first received a letter from my stbx lawyer demanding that I give my spouse $10,000 or she will file a motion for sale of the house.

I don't give her the money, and I receive the notice of motion as threatened.

The situation is that since she moved out I have been living with our two children in the house since she left. Ten months.

She has been underpaying child support since September 2012. She has also failed to pay section seven expenses. (These are significant in our case)

She claims that her financial situation is dire despite not meeting these obligations. That is only possible because of legal bills which are the result of some very aggressive legal tactics and constant letters she has her lawyer write making demands.

Anyhow, we have had two case conferences that have been ineffective. And have a settlement conference set for March. We are also waiting for the completion of an OCL investigation/report. I have defacto custody; there is no formal custody arrangement in place.

We are both seeking an unequal division of property- she wants to include a family cottage as a marital asset and disallow certain debts and I of course disagree.

My position is that I would like buy the home; however, it depends upon how the equalization calculations work out. They vary from me owing her $100,000 to her owing me over $200,000. How this works out will determine my ability to buy her out or not.

We haven't resolved any of these financial issues yet, so I believe it is premature to force sale of the house. I also believe that it would be incredibly disruptive to the children (daughter 16, son 13). I further believe that this isn't an urgent matter. I also would think that until custody and the OCL report are completed that any motion regarding the house is premature.

What are the odds of her being successful ? What issues do you see?
What are the costs likely to be for this type of motion?

Any comments would be appreciated.

[ddol1]

I will not say too much here - just what I know from my case. We to should have unequal division of property which will have a large impact on equalization. Our judge already said that the house will need to be sold it looks like and selling it now would be premature as the proceeds will just end up being held by the court pending final resolution of the equalization. (the judge understands that the house proceeds is the only way to cover the equalization either way. OUr children are older with two still in college (one graduates this May and the youngest will have one more year to complete her study. Not sure if this helps you much but our house is not up for sale at this point either - just no point with all the outstanding - but you should try and find a similar case on CANLII which I would think should have several as this is a common issue IMHO???

Costs are simple, if the motion is to sell the house today then the judge will have two choices, sell or not and whatever the result, the losing party will be subject to paying the "winning party's" legal costs for that issue. Just a guess based on my experience, the lawyers in my case have had costs of $4,000 to a motion for SS. You can never say what the other lawyer will ask for costs but the judge has the authority to assign costs at a lower amount - judge makes the final call.

[hadenough]

Are you self-rep'g?

Equalization of the assets etc is one major issue.

Hopefully Mess, Orleanslawyer and Hammerdad will get in on this thread to shed a better light. Sounds like a nightmare.

Edit: try not to "believe" too much - get facts. I am commenting on what you state your beliefs are, up above. You need relevant information, and Case Law similar to your situation. If you do not have a lawyer - get one.

[Mess]

I first received a letter from my stbx lawyer demanding that I give my spouse $10,000 or she will file a motion for sale of the house.

It's hard to give you an analysis here. Why did she expect $10,000?

I don't give her the money, and I receive the notice of motion as threatened.

Ok, at least you know what to expect from them.

The situation is that since she moved out I have been living with our two children in the house since she left. Ten months.

It sounds like you are sitting on the assets and she is in a position of having to start over with nothing (at the moment.) The house is half hers; are you paying her rent? What is the mortage payment? Who is covering that? If she is trying to set up a household that is suitable for the children to stay, and you are living in the mat home, then she has cause to ask for an interim equalization amount.

She has been underpaying child support since September 2012. She has also failed to pay section seven expenses. (These are significant in our case)

She doesn't get a cookie for this, however does she have any access to her assets? She is in arrears, this will be factored in later, but doesn't directly affect the equalization.

She claims that her financial situation is dire despite not meeting these obligations. That is only possible because of legal bills which are the result of some very aggressive legal tactics and constant letters she has her lawyer write making demands.

Have you made her a reasonable offer to settle? Conflict is rarely entirely one-sided. What are you offering her?

Anyhow, we have had two case conferences that have been ineffective. And have a settlement conference set for March. We are also waiting for the completion of an OCL investigation/report. I have defacto custody; there is no formal custody arrangement in place.

Custody and access are part of the dispute; this is never cheap, and rarely fault of one party.

We are both seeking an unequal division of property- she wants to include a family cottage as a marital asset and disallow certain debts and I of course disagree.

There is case law to support seeing the cottage as a second maritial home. It depends on the circumstances of course. Look, settling out of court means bending and coming to a compromise. I don't know enough about your situation, but if you aren't bending, you can't then complain that legal fees are somehow unnecessary.

My position is that I would like buy the home; however, it depends upon how the equalization calculations work out. They vary from me owing her $100,000 to her owing me over $200,000. How this works out will determine my ability to buy her out or not.

Was the cottage owned by you prior to the marriage? If so, I can see your position. If the majority of it's value accrued during the course of the marriage, then you are going to spend $50k fighting over a few thousand.

We haven't resolved any of these financial issues yet, so I believe it is premature to force sale of the house. I also believe that it would be incredibly disruptive to the children (daughter 16, son 13). I further believe that this isn't an urgent matter. I also would think that until custody and the OCL report are completed that any motion regarding the house is premature.

She can't force the sale of the house until equalization is settled, otherwise there nothing to go on. However if you are not on strong ground with version of the family property split, you need to be prepared to rethink your plans.

What are the odds of her being successful ? What issues do you see?
What are the costs likely to be for this type of motion?

Any comments would be appreciated.

I think her odds are poor based on the information you give, however it's not clear which of you has the more reasonable position overall.

I believe that maintaining the stability of the children's residence will be the compelling issue for the judge, in that you can present an argument that the final equalization settlement is unclear and probably won't be settled at a motion hearing. So the judge won't kick the kids out of the house when it isn't clear that you will have to sell to pay the equalization. This should be the crux of your argument.

For a motion hearing, if it is this one issue, I would guess around $5k each, depending on how much time the lawyers have spent preparing the pleadings and how much time they spend waiting around the courthouse for the motion to be heard. It could be a lot more.

[Hatingit]

Thank you for response mess.

The cottage property is an unsusal situation and is in the very least a trial able issue. I won't get off track going over this particular issue here. That said there is case law that supports my position.

The $10,000 is a number she made up. She claims it is necessary to buy a car. She makes about the same amount of money as I do, yet I have been paying all of the kid's expenses.

As for the house. Yes, I am "sitting on the asset" where the children are living. Sale of the house will require renting at a higher amount than the mortgage. I have paid the mortgage and all of the upkeep since she left. The mortgage payment is $3,200/month.

I have not paid her rent, but she hasn't paid her share of the mortgage. Sort of an offset.

I have made repeated suggestions that we go to mediation. All were refused.

I made her a very generous offer, greater than she could ever win in court (even if she won on every disputed amount). She refused.

In the mean time she has brought this motion.

At the end of the day, my position is that I want the opportunity to buy her out once the final equalization numbers are figured out. Her position is that she wants the money now.

From what I understand, so long as the issues regarding equalization are not settled the proceeds from any sale would go into trust anyhow. So the kids would be dislocated and it wouldn't satisfy her desire for money any time soon.

[Hatingit]

I offered her a proposition where she would only pay table child support. I would leave her with her pension (200,000), I would forgo section 7 expenses ($30,000 per year), I would pay for private school for my son, and pay for summer camp and university for both kids.

I asked to keep the house (which she doesn't want). Basically, I would forgo the equalization that she owes me in exchange for the equity in the house. She winds up far ahead with this offer.

She would have a large disposable income and the range outcome has her between 225,000 and 500,000 ahead as compared to best case and worst case scenarios.

She would be making $95,000 per year, and can get along quite nicely with only table payments to make.

[firhill]

I offered her a proposition where she would only pay table child support.

As opposed to what?

I'm just curious as I thought the only determination of CS due was as per the guidelines/table amount.

[Hatingit]

As opposed to paying her share of section 7 expenses and splitting her pension. Also not asking her to pay her share of current private school expenses and future university expenses.

[arabian]

"cottage" - was it an inheritance or in someone's family? Some cottages are quite valuable, depending upon which part of the country you live in.

Just curious why you mention it and then backtrack about it.

[Hatingit]

Cottage:

Cottage is my mother's cottage.
Prior to marriage, it was put into my name and my brother's name. It was done as part of estate planning. There was an expiring capital gains exemption at the time.

There is a mortgage on the property that my mother holds. It is a year round place that we came to on summer weekends. There is a main cottage and two bunkies. We stayed in one of the bunkies.

My mother occupies the main cottage all summer. It is her place and she has paid all of the expenses. She has control over who comes and who goes.

Anyhow- there is case law which would suggest that we didn't ordinary occupy the cottage and is therefore not a matrimonial home. She disagrees

I didn't bother with explaining all of this (and there is more) as it can be a discussion into itself.

[arabian]

Gotcha. About 20 - 25 yrs ago people USED to do this, on advice from their accountants/estate planners. People were sometimes advised to put cottages into their adult kids names without informing them. Hold a mortgage on the place etc. This way when they sold their primary residences they weren't nailed with CG taxes. Don't know if you can still do that though or if it's still a good idea.

How long were/have you been you married? You are obviously high-income (over 250k)?

[Hatingit]

Married 16 years.

[arabian]

From what you have said so far I would hazard a guess that you are correct in that the request for 10k is for the lawyer.

If your wife has no employment or investment income at this time she can request Interim Spousal Support. If I were you I would continue to make offers to settle. Once the Interim Order goes through (and I'm fairly certain that is what the lawyer will do next) you can expect your wife to stall this whole issue for a very long time - particularly if she is successful in receiving large Interim Support. If she has income and isn't destitute and has a roof over her head then Interim support is less likely.

If you've made good offers, which are realistic like you say, then it sounds like you are on the right track.

I certainly wouldn't be inclined to advance her 10k if it's just for legal expenses. If, on the other hand she has no money and has to pay to rent a place then I think it would be likely that you would be ordered to pay Interim SS (and quite possibly substantial).

The longer this drags on the more money it is going to cost you. Only winners are the lawyers.

[Hatingit]

She has income and she has a place.

[arabian]

I can't comment on the CS or custody as I never went through any of that thank goodness.

Sounds straight forward for the rest of it: division of assets and depending upon the difference of your two incomes, if any, spousal support. Of course you could look at lump sum payment.

Family cottage will be a bone of contention. Legally that could be argued so you might want to pay her off to simply expedite matrimonial property division and avoid ridiculous legal bills. At 500.00 - 600.00/hr it doesn't take long for your bill to be in the tens of thousands.