Challenging the Separation Agreement

[kdham1964]

This is my first post, but I have been checking out the forum for about a week now. I really admire the support you give to each other and I'm hoping that some of you may have some advice for me.

My divorce is not the problem - friendly and uncontested - just waiting for the Divorce Order in the mail. The problem is with my fiance's divorce.

In September 2004 his wife walked out and disappeared for over a month. Neither he or the kids (18 and 15 at the time) knew where she was. Since the mortgage was months from being paid off, my fiance (let's call him X) wanted to keep the property (she held a few part time jobs, but didn't really provide much income throughout the marriage, 20 years), He had a separation agreement drawn up, which covered EVERYTHING (one of the best I've ever seen!)

The agreement provided her with a $20,000 settlement, for which she waived all rights and claims to spousal support and property, among other things. The agreement also states that it is a "full and final settlement" and can be used as a complete defense to any further claims. "X" even had to pay for a lawyer for her to consult before signing it (we have the bill)! He also had to pay off all debts, and had to re-mortgage in order to do this.

Her first question after signing the papers was "When do I get my $20,000?"!

All of this happened before I even met "X", two years later. "X" tried to file jointly, she refused, so he went ahead and had her served. She has filed an answer and is now asking for spousal support, equalization of net family property (both of which she waived) and an order to set aside the separation agreement! Her reasons? She was under stress (never sought help for), not individually represented (she was), was under duress to sign (the agreement states that neither party was coerced, etc.) and that the agreement was biased in favour of him (he paid for everything)!

"X" has requested a case management conference (July 27) but the stress over this is killing him. Add to that we are burying his son June 24th (he died suddenly at 23 last year) and you can imagine the stress he (and I) are under).

Does she even have a chance at winning any of this? Nothing in the house now was here before she left, and "X" and I have built a nice life together. If she wins this, we'll lose the house, putting us and my 12 year old son on the street!

We are consulting a lawyer, but any advice you may have would be greatly appreciated!

[billiechic]

You really need to talk to a GOOD divorce lawyer. What an awful situation.

[kdham1964]

We are just waiting to hear from a fantastic lawyer for an appointment. I'm trying to be strong for him, so this is really the only place I can look to for advice and support. He doesn't need me falling apart on him, but the stress is extreme! Thanks for listening!

[billiechic]

did he tell you why she would settle for only $20k? was there significant debt that he assumed? Did the kids continue to live with him after the divorce? did either pay SS or CS?

This sounds like a very complicated case, and given that it was a "done deal" it would be very hard for anyone but a lawyer to tell you how this will play out.

[kdham1964]

All she saw was dollar signs! He paid off the line of credit, the Visa, back taxes, outstanding loans from her parents, and the $20,000 to herfor a total of over $60,000. Add to this the lawyers fees. An he had to remortgage the house to do it!

Also, she continued to draw cash advances off his Visa after she left. I am in the process of tracking down documentation of this...

Quite frankly, she blew the $20,000, went on welfare, lost her part-time job, and even lost her car because she got caught without insurance twice.

"X" also had Rev. Canada threaten to garinshee his wages because he filed as separated and she never changed his address and they thought he should file as married instead of separated. She continued to receive the child tax credit for his daughter. (Both kids stayed with him.)

We managed to get the Revenue Canada thing sorted out - "X" got a back payment for the child tax credit, and to the best of our knowledge, she owes the money she received back to Rev. Canada (can't prove this though). We have the Notices from Revenue Canada to prove his side.

Seems to me that if she does get equalization, that would include the $20,000 he already paid her, plus half of the debts he paid off! Honestly, I don't know where her head is (probably due to her substance abuse, which we would have a hard time proving)!

Also, "X" received an inheritance recently, since his dad and stepmom died. Iknow she has no rights to this, since it was after the date of separation, but again, she sees $$ signs. Too bad all that money went into the house and investments (again, AFTER the date of separation)!

Hopefully the lawyer will be able to sort this out quickly.

[kdham1964]

Forgot to add, neither party paid SS or CS, as this was all waived in the Sep. Agreement.

[standing on the sidelines]

i am thinking that one cannot waive CS as a rule of thumb. From what I have read she seems to have gotten a good deal but it depends on the house and other assets. You list all the debts he paid but list none of the assets. How much was the house worth and what was owing on it at the time they separated. It doesn't matter that she only worked part time when it comes to the assets.

One one hand you say she is a substance abuser and she doesn't know where her head is at, but if she signed the agreement while under the influence then she may have an out there, not sure though. The fact she had a lawyer look over it may help you guys out.

My condolences to the loss of your boyfriends son. My brother died in a car accident at the same age in '89 so I know how hard it is on a family.

[LostFather]

This is my first post, but I have been checking out the forum for about a week now. I really admire the support you give to each other and I'm hoping that some of you may have some advice for me.

My divorce is not the problem - friendly and uncontested - just waiting for the Divorce Order in the mail. The problem is with my fiance's divorce.

In September 2004 his wife walked out and disappeared for over a month. Neither he or the kids (18 and 15 at the time) knew where she was. Since the mortgage was months from being paid off, my fiance (let's call him X) wanted to keep the property (she held a few part time jobs, but didn't really provide much income throughout the marriage, 20 years), He had a separation agreement drawn up, which covered EVERYTHING (one of the best I've ever seen!)

The agreement provided her with a $20,000 settlement, for which she waived all rights and claims to spousal support and property, among other things. The agreement also states that it is a "full and final settlement" and can be used as a complete defense to any further claims. "X" even had to pay for a lawyer for her to consult before signing it (we have the bill)! He also had to pay off all debts, and had to re-mortgage in order to do this.

Her first question after signing the papers was "When do I get my $20,000?"!

All of this happened before I even met "X", two years later. "X" tried to file jointly, she refused, so he went ahead and had her served. She has filed an answer and is now asking for spousal support, equalization of net family property (both of which she waived) and an order to set aside the separation agreement! Her reasons? She was under stress (never sought help for), not individually represented (she was), was under duress to sign (the agreement states that neither party was coerced, etc.) and that the agreement was biased in favour of him (he paid for everything)!

"X" has requested a case management conference (July 27) but the stress over this is killing him. Add to that we are burying his son June 24th (he died suddenly at 23 last year) and you can imagine the stress he (and I) are under).

Does she even have a chance at winning any of this? Nothing in the house now was here before she left, and "X" and I have built a nice life together. If she wins this, we'll lose the house, putting us and my 12 year old son on the street!

We are consulting a lawyer, but any advice you may have would be greatly appreciated!

I'm no lawyer, and i'm sure that there are others in here that are versed in that area, but, the facts appear to be, she saw a separate lawyer, not his. She signed an agreement, took the money, and 2 years after the fact now comes back whining.

I'm my opinion, she doesn't have much to go on here, duress, 2 years after the fact? Hmmm, thinking a judge wouldn't go for it. If your facts are true, and she had separate council and without X's presence. Or did she go to his lawyer, separately? Pending that answer, she doesn't have much to go on, in my opinion. If she she did in fact see his lawyer, then that maybe considered improper/bias. I can not see a lawyer putting themselves in that position.

[dadtotheend]

I agree with LostFather. If she had independant representation, she's screwed. She can claim she was under duress, but that's what the lawyer is there for - to represent her even if she can't.

If I were your ex, I would initiate a claim for CS. You can't just bargain that away. Let her know you mean business.

[Mess]

IANAL.

She saw a lawyer, did the lawyer co-sign the separation agreement? This would be required by law to recognize that she received full legal advice on the agreement. She can claim that she saw the lawyer about other issues, and that the lawyer never went over the agreement with her (and for all you know, this may be exactly what happened).

It's not enough to claim duress, you have to show it. We are all under stress and financial pressures when we separate. What was so special about her? This is a line of argument you have to explore in your response.

What was the value of the house at the time of separation? Were the line-of-credit etc in her name only, or joint, or in your husband's name with her access? This would make a difference.

It doesn't matter if she was a stinking sack of shit. She has a right to half the value of the marital home at separation, and the family assets and debts should have been properly equalized, meaning if there was $40k of debt, she would be responsible for half. If a judge found that the asset split was drasticly unfair to her, then it could be overturned.

Meanwhile, if all the debt you mention was specificly in her name, and the net value of the house on separatation date was somewhere in the $120-150k range, then you have a really strong argument.

The couple were married for 20 years and he was pretty much the sole breadwinner. Since separation she has been unable to start a career and take care of herself financially. That part doesn't look good.

As far as Child Support goes, she may owe 5 years of support for one child based on an income of welfare. Or she may owe support for 2 children (did they go to post-secondary?) and a share of educational expenses, etc based on an imputed income. The difference there depends on how well you frame your arguments.

[kdham1964]

Thanks for your questions...I certainly have some work to do. It appears that the mortgage (and therefore the property taxes) were joint. As part of the Sep. Agreement, she signed over the Deed of Land to him. A property valuation was required in order to do this and remortgage the property; we can check with the bank for this info.


I will need to investigate, but I believe that the line of credit and the Visa were also joint (again, we'll check with the bank). The only other assets at the time of separation were a 1992 Ford ranger (kept by him), a 1987 Toyota Camry (kept by her) and a death benefit on him (I believe it was $10,000) provided through his union benefits. There were no other real assets.

I totally agree that it is not enough to claim duress or emotional stress. It is up to her to prove it. And to come back after almost 6 years and make these claims is ridiculous!

As far as the question of child support. she is not making a claim for this. The children stayed with him, neither of them went to post-secondary. In 2004, at separation, the son was 18 and the daughter was almost 16. The son has now passed away, and the daughter is 21 and on her own. "X" is not asking for any child support or spousal support. He just wants to divorce and move on.
And I agree with MESS.
It doesn't matter if she was a stinking sack of shit.
She may be entitled to half the mat. home. But she is also responsible for half the debt. Therefore, wouldn't they take the value of assets, divide in half, then subtract the $20,000 she received and half the joint debts to arrive at her share? Wouldn't she also be on the hook for the remortgage as well?

As far as her being a substance abuser, he would never bring this up unless it was absolutely necessary. And I know she would never admit this.

She saw an independent lawyer, though you're right, we don't know what they talked about. But she had the opportunity to discuss the agreement with the lawyer. 'X' was not allowed in this meeting and it was not with his lawyer.

All of your posts have given me good advice, and there are things I need to look into before we mweet with the lawyer. Thank you all.

[standing on the sidelines]

I would not bring the substance abuse thing up at all. That may give her some ammo to say that she was under the influence when this all happened. Best not to open that door for her.

You are right with your thinking that the value of assets minus the value of debts is the money they split. the 20,000 to me would be an advance of what she get. So take the money they split and divide it in two and then subtract 20,000 from her share. As for her being liable for the remortgage, not a chance. If she signed the property over to him and he got the new mortgage in his name it is all his.

[kdham1964]

We have no intention of bringing up the substance abuse for exactly that reason. Besides, we would have a hard time proving it, and he doesn't want to hurt her, he just wants to divorce and move on with his life.

And I agree about the remortgage (just asking on the off chance she would have to assume half the debt - can't hurt to ask!)

Waiting to see the lawyer and get all our ducks in a row...will send an update! Thanks everyone!

[Mess]

The reason you shouldn't bring up the substance abuse is because it is irrelevant. It would only be relevant if she was trying to get custody (too late anyway because of the children's ages). Otherwise, exactly what point would you be trying to make? You do not help your case by filling in your response with irrelevant criticisms.

There's some misunderstanding about the debt, but really you are going to need a lawyer and maybe an accountant to sort it out. It is critical to go back and show whose name the debts were in.

I don't know where you live or what the size of the house is, but it's hard to imagine that half the value at the time of separation was less than $60,000. Unless her lawyer's signature is on the separaton agreement indicating that he went over it with her, you will have some explaining to do.

[Cathy Simpson]

Having Sep Agreement Put Aside

Sorry if I am out of order here as I am trying to ask a question but don't know how to start a thread. My friend is in a situation where he signed a separation agreement without separate legal council. He could not afford it at the time. The agreement states that he was aware that the lawyer was not acting on his but only his wife's behalf. He did not completely read the agreement as he was told it was a standard agreement for separation and that the spousal support amount would automatically be reduced if his income was reduced.
Three years later his income is substatially reduced but he sees now that this situation was not noted in agreement. His x immediately sent the order to FRO and they are garensheeing half his income. It does not leave much for him to live on. Also the agreement states he will pay off two loans and regardless of x's marital statis she gets over half his pension, remains covered by his benefits . She has a business that we believe has little claimed income and is in a three year common law relationship.
Does anyone have any comments or suggestions?
Thank you !!