Legal Advice - Divorce / Ontario

[mathatter89]

Greetings.

I have filed a form 8A and served it to the respondent today (successfully) by way of process server (for an simple uncontested divorce as that is what we were doing when I started this). She and I had negotiated a separation agreement without legal counsel, however, I believe that disclosure (financial) was done. I was contacted by her lawyer today indicating that they believe that the separation agreement is null and that they will be filing a financial disclosure and they hope to renegotiate the agreement.

While we did not seek legal counsel, we came to the financial agreement in this way

1) We pulled up bank statements indicating what we had prior to getting married/living together (financially)
2) We figured out how much we earned as a couple, and then we split these earnings in half **She also did my taxes for the last 5 or so years so she is well aware of all of my income/finances etc**
a) She keeps what she brought in, I keep what I brought in (to the relationship)
b) We split what we earned in half, and then I paid her a lump sum for equalization of assets.

We agreed to a lump sum as that way she would not be taxed on spousal payments. She and I also agreed that there would be no need for spousal support.

--
So here's what I've learned from legal advice through my employer's legal line. 1) Wait until the other party tells me what they want before retaining my own counsel and 2) The separation agreement that was signed and witnessed may or may not be valid after all. I understand a court will try and see if the agreement is fair and if good faith for the disclosure was done (Which IMHO it was).

So ultimately the way I see it is that the other party is going hard ball right now and telling me they view it as null and void, when in fact it may not be the case, and now I should wait and see what the response is to my application for uncontested divorce (they have 30 days), or I'll continue with my divorce and they make an application for spousal support and/or a redistribution of previous assets.

Is there anything I'm missing here?

Thank you

[arabian]

They are merely "positioning" in the event (and likely the lawyer's hope) that the two of you will now fight instead of doing what the two of you wanted to do - settle things amicably. If there is equity in home etc. lawyers ogle that.

your ex, however, should have independent legal counsel (ILA) to ensure that she isn't being snookered and that the agreement the two of you cooked up is fair, and in line with current legislation. Actually, it is preferable that the two of you have ILA.

Down the road you don't want your ex coming back to you for money with a claim that she was pressured into the agreement and had no idea of her "rights."

[mathatter89]

No home equity, no matrimonial home, no kids.

Just a FYI.

[arabian]

large salary, pension ?

large debt?

[mathatter89]

large salary, pension ?

large debt?

Larger salary on my part than hers. Nothing exceeding $200K, but still larger than hers.

Married for 3 years, no pension, debt

[arabian]

so if you have no assets then what is the equalization for?

I think you mean to say that you have offered a lump-sum SS. Correct?

[mathatter89]

so if you have no assets then what is the equalization for?

I think you mean to say that you have offered a lump-sum SS. Correct?

Good point, thanks.

Lump sum SS - yes, you can think of it like that.

E.g.

I brought in $10K to the marriage
She brought in $10K to the marriage

We earned $100K together.

I sent her a lump sum payment of $50K. (she keeps 10k, I keep 10k, I send her half of the amount we earned together) because I kept all $100K in "my personal accounts"

[arabian]

.5 to 1/years married is general range for length of SS. 3 year marriage I would estimate that you would come in at 1.5 years of paying SS. Round it up to 2 to be generous.

High range of amount would be 50% of difference between your income and hers.

So you can do the simple math. Is your offer of a lump sum reasonable?

[arabian]

Good point, thanks.

Lump sum SS - yes, you can think of it like that.

E.g.

I brought in $10K to the marriage
She brought in $10K to the marriage

We earned $100K together.

I sent her a lump sum payment of $50K. (she keeps 10k, I keep 10k, I send her half of the amount we earned together) because I kept all $100K in "my personal accounts"

Then you have assets - cash You are dividing up your assets....equalization of assets.

Spousal support is entirely different. She may or may not be entitled to SS. If she makes a claim for SS then you would be wise to hire a lawyer. However, she would have to prove why she is entitled to SS (3 year marriage set her career back - hard to do with no children).

Many people think that the words "spousal support" should never come out of your mouth until she formally makes a claim. Always keep in mind that should she be successful (down the road) with her claim, it may be retroactive to the time when she first raised the subject of SS.

So, I guess you will wait now to see what her lawyer sends to you.

Good luck!

[mathatter89]

Then you have assets - cash You are dividing up your assets....equalization of assets.

Spousal support is entirely different. She may or may not be entitled to SS. If she makes a claim for SS then you would be wise to hire a lawyer. However, she would have to prove why she is entitled to SS (3 year marriage set her career back - hard to do with no children).

Many people think that the words "spousal support" should never come out of your mouth until she formally makes a claim. Always keep in mind that should she be successful (down the road) with her claim, it may be retroactive to the time when she first raised the subject of SS.

So, I guess you will wait now to see what her lawyer sends to you.

Good luck!

Ok, yes, I think that SS would be hard to prove. She changed her career due to health reasons and so she did take a step back, but that was because of her health and we are both in our twenties.

I'm curious. If either her parent provided money to pay off the odd credit card bill and my parents did that as well, and neither of us disclosed that prior to the separation agreement, does that make the entire agreement invalid because we failed to disclose this? (this is not a material amount to either party). Thanks!

[arabian]

You are both young, no children and married for short term and I therefore I don't believe SS will come into play.

Unless you signed agreements to repay parents then it is irrelevant. If you make the kind of money you say you do then I really wonder about the two of you having your parents pay off your credit cards. If you can't manage your spending habits then I would suggest cutting up and disposing of your credit cards.

Sounds like the two of you were mutually not honest in disclosing gifts from parents throughout your short marriage (receiving money from parents to pay off credit cards).

I'd learn from your mistakes and move on. You have probably "dodged a bullet" but the next time may not be so simple. Had you stayed with this person a few more years and she became totally disabled then you could be supporting her for a very long time.

You did not disclose how you and your STBX made the 100k - hope it was legal or you had fun doing it! Hopefully you and your ex paid back your parents???

[mathatter89]

You are both young, no children and married for short term and I therefore I don't believe SS will come into play.

Unless you signed agreements to repay parents then it is irrelevant. If you make the kind of money you say you do then I really wonder about the two of you having your parents pay off your credit cards. If you can't manage your spending habits then I would suggest cutting up and disposing of your credit cards.

Sounds like the two of you were mutually not honest in disclosing gifts from parents throughout your short marriage (receiving money from parents to pay off credit cards).

I'd learn from your mistakes and move on. You have probably "dodged a bullet" but the next time may not be so simple. Had you stayed with this person a few more years and she became totally disabled then you could be supporting her for a very long time.

You did not disclose how you and your STBX made the 100k - hope it was legal or you had fun doing it! Hopefully you and your ex paid back your parents???

STBX? Don't know what that is.

100k+ is my salaried full time job - all declared to the CRA.

Just out of curiosity, we separated a year ago. Multiple lawyers have told me that the other party proving that the separation agreement is null and void would be a stretch and it isn't as clear and cut as they say it is - which I agree.

Let's say, worst case scenario it is thrown out. Would the spousal support payment and equalization of asset be based on what I have now in the bank and make, or based on what I made when we separated and what I had in the bank account at that time (of separation?)

I assume the equalization payment I've already made is worth something?

Thanks

[arabian]

If you have spoken to "multiple lawyers" then I think you have your answer.

Spousal support MAY be retroactive to the time when it was first raised by the other party. Did your STBX (soon to be ex), or EX send you a letter at the time of separation demanding SS? If you receive communication from your ex's lawyer demanding SS then the date of demand would come into play should she be successful.

You can read up on cases which have been decided by judges which are similar to yours (case law) by accessing CanLii.

[mathatter89]

If you have spoken to "multiple lawyers" then I think you have your answer.

Spousal support MAY be retroactive to the time when it was first raised by the other party. Did your STBX (soon to be ex), or EX send you a letter at the time of separation demanding SS? If you receive communication from your ex's lawyer demanding SS then the date of demand would come into play should she be successful.

You can read up on cases which have been decided by judges which are similar to yours (case law) by accessing CanLii.

I've been going through a lot of emotion today, so please forgive me, the first thing I need and should have said earlier was thank you for all of your help. My apologies I did not convey my thanks earlier.

I've been talking to multiple lawyers (a work perk for me) and have sought advice on this forum, so have been running around with my head cut off for the last 5 hours or so.

My STBX did not demand SS at the time of separation and has not done so yet. The only thing I got today was a letter from her lawyer indicating that they believe the separation agreement is null and void and that they were looking to renegotiate the separation agreement - so nothing about SS.

Because I have served her with the application for divorce today, her lawyer has 30 days to reply back to my application indicating what she wants.

Until then, I really don't know what she wants. One of the items I noticed that she can fight for is for me to cover her legal costs. Is that a normal item for me to have to pay her legal costs for her to 'renegotiate' the separation agreement?

Anyways, say the agreement is in fact declared null and void. I understand she has to file a financial disclosure form, I don't think I have to at this point because the agreement has not been considered null and void.

Let's say that it is though, is it an equalization of assets and SS based on the date of separation, or is it based on what I and she have now? (a year after separation and living apart?)

[arabian]

No. This just speaks to the immaturity of the two people/inability to live within their means IMO.

It would be a colossal waste of money to pay a lawyer 350.00/hr to delve into this. You are a high-income earner and you should realize that there are many lawyers out there who are going to try to separate you from your money. They can do this by simply convincing your ex that she is being ripped off and is entitled to more money. How you deal with this? You have to shut off the pump so-to-speak. You have been separated for more than a year. Hopefully you and your ex aren't still email/text buddies. Big mistake but then that is a thing of this generation isn't it?... having to stay connected. With that said, I'd cut off communication and move on with your life (hopefully move out of your parents place too LOL).