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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 07-16-2007, 09:53 PM
babs babs is offline
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Default 30 Years & Here I am!

Hi everyone. I am new here and am so glad that I found this site.
I was married for 30 years and have 3 grown children. I have numerous questions regarding my situation. My ex and I have been separated since August 2005. At that time he was laid off and secured employment out of province. I was quite willing to go with him and start a new life yet again. We had moved 9 years earlier. I suspected he was having an affair but he swore up and down that was not the case. Anyhow to get to the point he did not want me to move with him and advised me that he would move and work for the next ten years or so and then come back. Ok well it didn't take much for me to realize that he wasn't coming back..this is where things got a bit sticky. I went an got a separation agreement and we filled it out together. You have to understand that I was still going to work and didn't let anyone know what was going on so I was trying to keep things as normal as possible. In the meantime he was separating my whole life in the basement deciding what he was taking and what was staying. I was the one that had to tell our children and family.

I went to a lawyer for a consultation with the separation agreemnt in hand. The advice I received was..you have crossed all your T's and dotted your I's but I won't represent you unless you get alimony. I advised the lawyer that he didn't want to pay and the lawyer said that I needed to protect myself and get "some amount, any amount for now because when it comes time for the divorce a judge can change the amount but if you don't have alimony then he cannot award it to you". I beleived that the separation and divorce were two separate issues. Not once did the lawyer tell me not to sign the separation agreement. So after much arguing I was told by my ex that he would give me $300.00 per month and not a penny more and that he would only start paying me in January 2006 as he needed time to get settled.

So now we have been through two case conferences with a judge and the judge said in both meetings "why would the court overturn a separation agreement" I was shocked.

The calculation showed with his wage, our ages etc etc that I should be receiving $1700.00 -2100.00 per month. My lawyer submitted an offer to settle of $1700.00 per month but my ex then moved to another position within the company where he doesn't get overtime and the calculation according to his lawyer has been signficantly reduced to a medium amount of $900.00 per month. My ex countered at $500.00 per month for 8 years which would put me at 60 and him at 65. My lawyer then countered at $900.00 per month and this is where we sit until the trial.

Also my ex has not provided his expenses from last year and has since entered into a common law relationship and advised that he was paying an amount in rent each month. We have since discovered that his common law girlfriend owns the house.

I really thought that I was protecting myself and now it has cost me thousands of dollars to get this far and I am concerned that at the trial the judge will not overturn the separation agreement.

All other assets were dealt with and the only issue is Support. His wage is more than twice what mine is.

Can a judge over turn a separation agreement and on what grounds would they do this?

Hope you can shed some light on this situation.
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Old 07-18-2007, 11:05 PM
babs babs is offline
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Question Thirty years and here I am!

I am vey new to this website but have questions regarding my situation and hope someone can help.
I was married for 29 years, 3 grown children none living at home but one still in University. My ex relocated to another province for work and informed me that he did not want me to join him.
Ok so here is where it gets sticky. I went to a lawyer for a consultation with my separation agreement in hand. We split the bills and he got away with most of the liquid assets for example his 2 year old truck and his tools worth approx 25,000.00 and half the furniture. I got an old car, the house and the other half of the furniture. I presented the separation agreement to my lawyer and he advised that I needed to get alimony. His words were " You have crossed your T's and dotted your I's but I wont represent you because you do not have alimony" I advised him that this would not be easy as my ex did not want to pay. The lawyer advised that "You need to get an amount, any amount because when it comes time for the divorce a judge can change the amount of the alimony but if you sign off on it he cannot grant it to you." At no time did my lawyer say come back here before you sign the agreement. In my mind because of what the lawyer said I believed that the separation agreement and the divorce were two separate entities.
We signed the separation agreement with a spousal support amount of $300.00 per month as my ex advised that was all he was willing to pay and had it witnessed.
A year later I returned to my lawyer and the following occured.

1/ 2 case conferences where the judge stated in both conferences "why would the courts overturn a separation agreemnt.
2/ Offer to settle - this has gone back and forth...my ex's income last year was over $100,000.00 and mine was 43,000.00. The calculation showed that he should be paying alimony between 1700.00 - 2210.00 per month. We offered to settle at $1700.00 per month.
3/ My lawyer has requested back up receipts for rent, utilities etc and as yet has not received them.
4/ Ex changed positions within the company so that he now has no overtime and apparently his yearly income will drop to $75,000.00 per year thus changing the calculation to a medium amount of spousal support to $999.00 per month.
5/ An offer made by ex - $500.00 per month, or 28,000.00 rolled over to RRSP, or $20,000.00 cash settlement.
6/ Counter offer by my lawyer of $900.00 per month or 60,000.00 RRSP roll over or $45,000.00 cash settlement. ( I argued with my lawyer that I did not want the RRSP rollover as I need the monthly income but he advised me to include this amount)
7/ Offer to settle received today for $57,000.00 RRSP roll over.

My lawyer is pressuring me to settle because apparently it has a year since we filed with the courts and because of the time lapse we would have to re-file if we don't settle soon.

My questions:

Do I have to accept this offer.

I am contemplating dropping the whole thing and advising my ex that I have decided not to pursue the divorce and he can pay me the $300.00 per month for the next 8 years and I will stay on his benefits and he can keep me as beneficiary on his life insurance. (I will be removed on both when the divorce is final) If I did this and my ex filed for divorce would I be more in control of the situation. Would he not have to bargain with me if he wanted to settle?

My ex has lied about certain financial details. He is now living common law and his new girlfriend owns the house he is in where he stated that he was paying the rent when in fact his is only paying half and in fact his monthly expenses have been cut in half. I suspect this is why we have not received his receipts.

What grounds would a judge use to overturn a separation agreement?

Sorry that this is so lengthly but if anyone could answer my questions I would greatly appreciate it I am feeling overwhelmed and very pressured.
  #3  
Old 07-23-2007, 11:59 AM
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hi Babs.......I understand your frustration however just an FYI on the commonlaw thing........the person I currently live with is still legally married to his wife therefore we CANNOT be considered common law.......common law cannot be started unless both parties are not married to anyone else......separation or not.......be careful on separation agreements.....we have found that for creditors they dont care what you agreed to ......if he is topay joint debt and defaults you will be held responsible......and they will tell you to sue in civil court to get it back.......fine line with one person in separation and living with new partner.......the common law statute doesnt start til the day you are legally divorced......then the time for commonlaw status begins........
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Old 07-23-2007, 01:44 PM
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hi Babs.......I understand your frustration however just an FYI on the commonlaw thing........the person I currently live with is still legally married to his wife therefore we CANNOT be considered common law.......common law cannot be started unless both parties are not married to anyone else......separation or not.......be careful on separation agreements.....we have found that for creditors they dont care what you agreed to ......if he is topay joint debt and defaults you will be held responsible......and they will tell you to sue in civil court to get it back.......fine line with one person in separation and living with new partner.......the common law statute doesnt start til the day you are legally divorced......then the time for commonlaw status begins........
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Old 07-23-2007, 02:26 PM
jstwannano jstwannano is offline
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Hi, I'm new here also. I have been reading some of the posts and you can be common-law with someone as well as being married to someone else. Read some of the early replies by LV to Dickstacie back in March. I think if full financial disclosure is not given the court can throw out the separation agreement. Read Dickstacies' posts they are very enlightening and LV gives some very good advice. Good luck and keep us posted.
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Old 07-23-2007, 02:42 PM
jstwannano jstwannano is offline
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Hi, I'm new here also. I have been reading some of the posts and you can be common-law with someone as well as being married to someone else. Read some of the early replies by LV to Dickstacie back in March. I think if full financial disclosure is not given the court can throw out the separation agreement. Read Dickstacies' posts they are very enlightening and LV gives some very good advice. Good luck and keep us posted.
  #7  
Old 07-23-2007, 07:31 PM
logicalvelocity logicalvelocity is offline
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Section 1, Subsection (1) of the Family Law Act, R.S.O. 1990, Chapter F.3 defines the following:

http://www.e-laws.gov.on.ca/DBLaws/S...0f03_e.htm#BK1

Definitions

1. (1) In this Act,

“cohabit” means to live together in a conjugal relationship, whether within or outside marriage; (“cohabiter”)

“spouse” means either of two persons who,

(a) are married to each other, or

(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right. (“conjoint”) R.S.O. 1990, c. F.3, s. 1 (1); 1997, c. 20, s. 1; 1999, c. 6, s. 25 (1); 2005, c. 5, s. 27 (1, 2); 2006, c. 19, Sched. C, s. 1 (1, 2, 4).

For claims of spousal support brought forth under the Part III of the Act; Spouse is defined further. See Section 29, subsection (1):

PART III

SUPPORT OBLIGATIONS


Definitions

29. In this Part,


“dependant” means a person to whom another has an obligation to provide support under this Part; (“personne à charge”)

“spouse” means a spouse as defined in subsection 1 (1), and in addition includes either of two persons who are not married to each other and have cohabited,
(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. (“conjoint”) R.S.O. 1990, c. F.3, s. 29; 1999, c. 6, s. 25 (2); 2005, c. 5, s. 27 (4-6).


lv
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Old 07-23-2007, 07:51 PM
logicalvelocity logicalvelocity is offline
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Welcome to the forum "babs" and "jstwannano"

There is a wealth of knowledge and experience available from its members posts in collaborative discussions.

lv
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Old 07-30-2007, 09:49 AM
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what I meant by commonlaw relationship not being valid is when one of the parties is married to someone else completely that is not involved (to a 3rd party).......my lawyer has advised me that you cannot be considered married and be considered in commonlaw relationship at same time........borders on bigatry.......fine line there..........as far as marital debt I spoke of........it was written in his separation agreement and has nothing to do with the courts......long & the short is she failed to pay it and they(bank) came after him.......the bank told him they dont care about separation agreements and that is out of their hands.....therefore we would have to go to civil court to get our money back
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