Selling of the house

[Adam_613]

Hi all,

My ex and I separated about 4 months ago. She left to her mother's house taking my little angel (my three year old daughter) with her. We have worked out a schedule as to when we'll have the little one, however, since she left, the problem has always been the house. She is claiming that the living conditions are not suitable for her or our child and therefore we must sell right away. The conditions under which she wants to sell the house are not logical nor reasonable. I will not discuss them here but I assure you that I have talked to many people and that have all said she is not being logical. Like her, I DO, want to sell the house but under logical and reasonable conditions.

I had begged her to come back home and offered many options. Among which is for her to come back home and I move out for a whole year. Throughout this period I would still pay half the mortgage as long as she comes to counselling with me....in hopes we can save our marriage for the sake of our little angel. Unfortunately, although I have tried my best to resolve the issues she has refused to consider any of the options proposed.

I received a letter yesterday from her lawyer indicating that she intends to take me to court and force the sale of the house. My questions are:

1) How will the court react to this? Will they give me a chance to explain the fact that she has not been to mediation with me or the fact that she is being unreasonable or will they simply move forward with the sale?

2) If they do move forward, how will they do so? Will the house be at least assessed?

3) The lawyer had stated in the letter that they will ask the court to have me pay for all associated proceeding expenses. Is this possible and under what rights does he have the rights to do so?

The fact that I have been trying my absolute best to resolve the issues amicably with very little cooperation is demoralizing. I never knew what depression was until now..I feel paralyzed.

Any help would be much appreciated.

Thank you in advance.

[standing on the sidelines]

your first big obstacle is to realize that your relationship is over. From your post it seems like you are still holding out hope for trying to get back together. Unless she wants to try you are SOL.

You have to eventually work on either buying her out or selling the house. Of course your friends think that she is not being reasonable or logical about it but without more to go on no one here knows that for sure. Its not going to be a case you sell the house and she gets her share of the proceeds right away, you still have to both do your financials and then equalization. The funds from the house should be held in trust by the lawyer until that all gets settled.

Dont try to use the house as a way of trying to hold onto her. Your deal of she moves back and you move out for a year as long as she goes to counselling to try and save the marriage isnt really a deal when she doesnt want to save the marriage.

Your best bet is to get your own appraisal done on the house so you can be ready for to either make an offer to buy her out or to have an idea of what the house should be listed for. No sense in trying to avoid the reality that it will happen.

[hadenough]

It does sound as though you have (on an emotional level) tried your best. However, it's time to put your business cap on - as Standing said - the relationship is over. Try and move on as amicably as you can with this, with a "business" frame of mind. Depression is awful and it feels like your whole world is caving in - but try and embrace the fact that this is temporary and the faster you move forward on this (equalization) that you will get closure and eventually, the opportunity to eventually meet someone else, but more importantly focusing on being a great parent to your child.

Definitely get your own appraisal done, they run about $300-350 and usually take about an hour or so. They are only valid for 30 days I believe, possibly 60. Advise your ex's lawyer that you are prepared to co-operate fully and that any costs incurred for listing the property, real estate fees etc should be divided equally or at least amicably (perhaps one of you makes a lot more money than the other). Take comfort in the fact that you tried your best and your intentions, while misguided, were good and true. You can end this nightmare and the sooner you do, the sooner you can start to feel better and get out of your depression. Best of Luck

[HammerDad]

She can only force the sale of the house if you don't buy her out. If it is possible to refinance and buy her out, that may be an option for you.

Otherwise, you need to get your head on straight. First and foremost, you should have petitioned the court to have the child returned to the matrimonial home within a week of her moving out. You are equal parents and, until a court states there is a parenting schedule, you share defacto custody meaning she does not get to dictate when you see your child or remove the child from your care.

Second, even if she does come back MOVING OUT IS THE SINGLE BIGGEST MISTAKE YOU CAN MAKE. When you move out you are pretty much telling the world your STBX is the primary parent of your child and you are cool with that. If you want to get more then the every-other-weekend-daddy-screwjob, you need to stay a part of your child's life.

Your relationship is done. You need to accept that. You now need to stategise on how you are going to be a large part of your childs life. As mentioned before, it is now a business transaction. You request for 50/50 parenting of your child, equalization of marital debts and assets and move along from there. Don't fall on your sword by allowing your feelings for your STBX override your ultimate goal of being an involved dad, because that is neither in your or your child's best interests.

[Adam_613]

You are all absolutely right...I do need to move on and I will. Thank you!

Any direst answers to my questions? I will refries question one:

1) How will the court react to having her force the sale and will I have my day in court to explain what had transpired?

2) If they do move forward, how will they do so? Will the house be at least assessed?

3) The lawyer had stated in the letter that they will ask the court to have me pay for all associated proceeding expenses. Is this possible and under what rights does he have the rights to do so?

Thank you.

[Pursuinghappiness]

3) The lawyer had stated in the letter that they will ask the court to have me pay for all associated proceeding expenses. Is this possible and under what rights does he have the rights to do so?

lol...Her lawyer's going to say lots and lots of things. Get your own attorney as soon as possible.

[Pursuinghappiness]

Also, just to state. She may want the house sold right away..but there's a process to be followed. Unless she has some compelling reason for an emergency motion to be filed prior to a case conference...she (and you) have a bit of a wait in front of you.

It took 9 months for a motion to get through to sell our marital home and we were both suffering through living together in it at the time. I just closed on my new place this month (year later).

If you want to buy her out...you will have to have the house value assessed. It costs a few hundred dollars and will give the court a value to use for buyout. If its the house your daughter has always known and in a school district that is favorable for the future when she attends, it might be in your best interest to keep the house if you're going to be embroiled in a custody battle.

If you don't want to keep the house...or you can't afford to...the house will probably be sold. However, she can't just force you to do it now..particularly if you're paying the household bills. She will file...you'll respond and you'll fill out financial statements...you'll eventually get a date for a case conference and it will be brought up at that time. You can consent, hire a real estate agent and do it...or you can stall and force her to file a motion for the sale of the house (then you'll get to make an affidavit which a judge will read).

If her lawyer is trying to convince you that she can sell the house out from underneath you...he's full of crap. And don't listen to anything else he says...its also a load of crap. Get your own attorney...particularly because you have done a very very foolish thing by letting her abandon the marital home with your child. You need to immediately get an attorney to get that resolved. Forget about losing your house...you're about to lose your kid if you don't get your head out of your ass and get legal representation and compel her to bring your kid back. She has zero right to take your kid and live anywhere without a court order. Your silence will be taken as consent if you let it go on long enough.

Stop whining about her not going to mediation and counselling. She doesn't have to. She wants to end the marriage and its her right to do so.

I know at the beginning of the process, you're a bit baffled and dont' know what's going to happen...but your number one concern at this point should be your child and nothing else because she's about to wage full-scale war. If you think you were depressed before...you better get ready.

First thing...get an attorney and compel her to bring your child back. If she wants to move out...good...but she has zero right to take the child out of your marital home. You need to get that very quickly in your head and get legal counsel today.

[Berner_Faith]

I agree with Pursuing...it is clear that she is going to push for things and because of this is not necessarily going to be fair and civil.. as much as you may not want to, get a lawyer to act on your behalf... Do what HammerDad said and go for 50/50 custody and get everything sorted out

Best of luck!

[HammerDad]

3) The lawyer had stated in the letter that they will ask the court to have me pay for all associated proceeding expenses. Is this possible and under what rights does he have the rights to do so?

Thank you.

The court can award costs associated with an action to one party or another, and it is pretty much standard for all motions and responses to include this wording.

Whether or not the court does award costs depends. It depends on whether or not one party is wasting the courts time by bringing frivilous motions or creating unnecessary delays. It also depends on the reasonableness of each parties arguments.

In your situation, what are the reasons for not selling now? Is the market bad? Is the house under-water in value? Were you in the midst of some reno's that should be completed in order to avoid under-valuing the house? Can you buy her out? Have you made an offer to buy her out? Can she buy you out? Does she want to buy you out?

If you can provide reasonable explanation why the courts should agree with you and delay the sale of the house, you are likely to win. But it is not unreasonable of her to want it sold sooner rather then later. She wants to move with her life, and getting disassociated from the house (either by sale or being bought out) will help that.

But you need to have the house valued by an appraiser. If you cannot afford to buy her out, provide her with a reasonable timeline in which time the house will be put on the market. She is entitled to half the equity in the house, and a court will only allow you to delay for so long before they compel you to sell the house.

If you:

a) make reasonable offers to either buy her out, or

b) give her a reasonable timeline to have the house ready for sale.

you will have a very good chance of avoiding having to pay her legal fees and may have a slight chance of getting costs yourself.

[Pursuinghappiness]

Hammerdad:

I agree with some of your reply but I disagree that he should provide her with a plan...either verbally or on paper.

On another thread, the OP was discussing still trying to save his marriage and go to counselling. It sounds like while his spouse has gotten an attorney, he hasn't even retained one yet.

She can't circumvent the process here without a very compelling reason. And even then, for instance in the case of an abuse situation, prior to a case conference she would only be filing a motion for temp support or a temp custody order. It sounds like this isn't the situation here (unless he didn't give the full story). She just took off with the kid and now is telling him he has to sell the house through her lawyer.

He may want to make his own personal mental plan for the house but he shouldn't provide her with anything on paper right now. He needs to see a lawyer, find out what his options are and file for divorce. They'll go through the process of getting assigned a file number and getting ready for a case conference. At that point, if sale of the house is discussed and he agrees it needs to be sold/bought-out...she can't recoup costs for anything. But that is months away...his first priority should be getting his kid back in the marital home.

Thousands of couples all over Canada are forced to live in their marital homes for long periods of time while separated (which opens the door to a bunch more issues that we hear on this forum). If you could force a sale on the marital home...believe me, people would do it. I know I would have. I was forced to reside in my marital home for 18 months with my stbx. Her lawyer is full of crap..and the "costs" issue for this action is full of crap.

He needs to see a lawyer and ignore her and her lawyer for the moment and work on getting his kid back before he ends up shafted because of the status quo arrangement she's establishing.

[HammerDad]

It isn't so much of giving her a plan, but he cannot just say "I am not selling it right now" without valid reasoning.

He has to either say:

I am willing to sell the house after X, Y and Z are completed in order to maximize value. I anticipate it will take X amount of time to complete said items. or

I am willing to sell the house, but it needs to be organized and I need appropriate time to find alternate accomodations. or

I am willing to buy her out at 1/2 the equity of the house, minus her half of realtor fees.

If he offers nothing and give no reasonable explanation for delaying, it may appear to the courts that he is just delaying and being unreasonable and thus could get hit with fees.

I do really agree with your last paragraph though.

Chances are this guys wife has already found someone new and wants out of the house to start up that relationship. That is why she is in such a hurry. If there is a Mr. Wonderful, if I were him, I'd do what I can to make it easy to be with him and try and maximize my time with kiddo.

[Pursuinghappiness]

Then what he should probably do is go see a lawyer to get advice on this with his first priority not being the home sale but the child custody issue....because he's gearing up for a mess there if he doesn't get that done first. She's currently got the kid at her mom's house.

Then, based on the advice of his lawyer...he can have his lawyer forward a letter to her lawyer stating the possible solutions with conditions. Number 1 being that she bring the kid back. Again, my opinion is not to contact her at all on this issue without good legal advice.

[beebie]

The house is sold as part of the larger matrimonial property distribution so if there is other property (vehicles, RRSPs. pensions, house contents) , it is arguable that you should allocate the property once the assets and debts and exemptions have been determined and not rush to sell the house.

The wife may need the equity to buy herself and child a new place.

After 4 months, it seems like the wife doesn ' t want to reconcile.

If there has been no property appraisal by a professional appraiser, that has to happen first.

Disclosure of assets, debts, and income has to be done before property divided.

These are hopefully arguments to toss at the other lawyer.

Costs are determined by who is successful in the application; if the lawyer gets the order for sale, the husband might wind up paying costs.

But I too think this might be an intimidation tactic easily countered with a demand for a contribution to the expenses of the house or a boatload of correspondence asking stupid questions of the other lawyer that will cost the wife a million bucks....