Common Law Separation

[Pursuinghappiness]

Receiving SS isn't as rosy as many would like to think. First of all, it is 100% taxable. So, you had better be very good at putting money aside for the big tax bill at the end of the year. Secondly, if one is merely surviving on SS, no contribution to CPP is happening. It may not be a big deal to you when you are relatively young but as you get closer to the time when you want to retire it will be a very big deal I can assure you.

Courts look at the overall picture. You may have been married for 17 years without much employment outside of the home. However, if you are relatively young and physically healthy you would be expected to make progressive steps towards "self-sufficiency." Going back to school is a very good idea if you intend to pursue something that will realistically lead to self-sufficiency.

If you have been a domestic goddess for 17 years then minimum wage working at McDonalds is not out-of-the question so brace yourself for your ex's lawyer to push this, particularly if you are in good physical condition. An anxiety order will not preclude you from looking for employment unless you are under the care of a medical professional with whom you are currently receiving ongoing treatment and who would be willing to attest to your inability to work.

I believe that there is value in working at home (as you have done) and you certainly should be given respect for your situation. Fortunately, the courts acknowledge people, like you, who have supported their spouses in their careers. Something that a judge would ponder would be, taking your education and past working history, would you be today had you not stayed home to take care of the family. That very question/answer may very well define your outcome with regards to Spousal Support, together with your age and length of your marriage.

Good luck

Yea I think this is dead-on.

Overall, it sounds like you're definitely eligible for SS. But there are some tactics your stbx can use as mentioned. She can make you prove that you're unfit to work at a regular minimum wage job and try to have an income imputed to you. She can also try to term your SS to a reasonable time for you to become self-sufficient.

On the other hand, you're going to be making the argument that you've been out of the workforce and even if you WERE totally fit, you won't be able to find immediate employment and also you were the primary caregiver for your child. This is a highly successful argument for most SAHPs.

Bottom line (and this isn't gender specific....cause I say the same thing to men on here), she put herself in this position by allowing you to stay home without earning an income and paying for your upkeep...and that was totally foolish on her part if she didn't mean to do that for the rest of her/your life. I have very little sympathy for people that allow that and then whine about SS. The bottom line is that no working person should tolerate supporting another adult person who isn't acting like an grown-up. (Sorry for the harshness, you seem like a very nice guy). So she's made her own bed, in my opinion.

I do have a question for you. If you've been unable to work due to anxiety...are you collecting any form of disability? I'd imagine that may be something that gets brought up.

[AVCanada]

Yea I think this is dead-on.

Overall, it sounds like you're definitely eligible for SS. But there are some tactics your stbx can use as mentioned. She can make you prove that you're unfit to work at a regular minimum wage job and try to have an income imputed to you. She can also try to term your SS to a reasonable time for you to become self-sufficient.

On the other hand, you're going to be making the argument that you've been out of the workforce and even if you WERE totally fit, you won't be able to find immediate employment and also you were the primary caregiver for your child. This is a highly successful argument for most SAHPs.

Bottom line (and this isn't gender specific....cause I say the same thing to men on here), she put herself in this position by allowing you to stay home without earning an income and paying for your upkeep...and that was totally foolish on her part if she didn't mean to do that for the rest of her/your life. I have very little sympathy for people that allow that and then whine about SS. The bottom line is that no working person should tolerate supporting another adult person who isn't acting like an grown-up. (Sorry for the harshness, you seem like a very nice guy). So she's made her own bed, in my opinion.

I do have a question for you. If you've been unable to work due to anxiety...are you collecting any form of disability? I'd imagine that may be something that gets brought up.

I'd like to make it clear that this whole issue isn't really about me, but about my son, and what I'm able to do financially during a difficult transition in his life. He needs me and I need to be able to offer him a place of residence where he feels at home with a parent he's relied on for his whole life. My mental health issues are manageable at this point, enough that I will be able to work when I need to - more or less when he's able to become more self-sufficient. I also want the impact to be minimal on the other end, so he's well cared for by both of us. We're on the same page in that regard, but during a rather heated argument, she basically said I shouldn't expect any support whatsoever and that she'd "find out how to do that", hence my posting here.

I am a nice guy. And while you are correct in saying I hadn't acted like a grown up before my son, I certainly have when it comes to helping to raise him into the wonderful child he is today and who doesn't deserve any of this. That's been hard work and I've done it well. I've provided a stress free home for my spouse to pursue her business interests, no different from the many SAHMs I know. I can't imagine they'd be thrown out into the world with nothing.

I'm not concerned much about spousal support as I think that would make things very difficult on her end. The equity and child support are the main issues here. I need time to get my new life in order for his sake. If this whole thing happens, I'm dealing with a major transition in my life.

[rockscan]

Prepare for a whole host of ugly to start coming your way. If you have any emotional instability, get some resources in place to help because this whole thing is not going to be pleasant and it will affect your psychological well being.

Also, start working on your plans. For instance, what you will do for employment and how you will achieve that. Look at your costs and potential income down the line. Also look at what will happen living wise in the short term and long term. What will you do as a transition and how will you get there. You should also start watching bank accounts, lines of credit and mortgages. Any debt you two incur will be taken off the value of the assets. If she starts racking up credit debt, any nest egg you were counting on with the sale of the house will be impacted.

Being smart and getting your ducks in a row is the best approach. Stop listening to what she says and focus on the long term plans.

[Pursuinghappiness]

Just to be clear. I wasn't being gender-specific. I'm equally as disdaining of men who tolerate women sitting around and not working and then complain about having to support them after divorce. Its just not a smart thing to do unless...as I stated...you're fine with supporting a non-working, needy ex-spouse for the rest of your life. And since divorced non-working adults and their children (usually women) are one of the biggest poverty groups in North America, I'd say its pretty foolish on both sides.

Adult people should have a responsibility to provide for themselves and their children in the event of a marital dissolution or death, etc. A huge part of the duty of raising children is the financial responsibility associated with having them and that responsibility should be shared by BOTH parents in case one suddenly isn't around. And divorce (or splitting up, in your case) is a very foreseeable possibility given the statistics.

Children shouldn't be burdened with the bad decision-making of grown-ups and the risks of not earning income are pretty evident to most adults. Your ex threatening not to support you, at this point, is simply stupid...she put herself into a position where she was tolerating the intolerable and now she's going to reap what she's foolishly sown.

Its great that you've raised a nice kid but being at home all day isn't a requirement to do that. I've raised great kids and worked full-time my entire adult life. That's frankly what most parents do. I consider it ridiculous to not at least get educated, have skills and keep some level footing in the workforce in case you need to go back to work and support yourself and your family at some point. You can say its all about your kid but if that was the case, you would have considered employment a necessity.

That being said, your situation is common-place and since your stbx has been an idiot, she's likely to now get stuck with SS....which is what the initial question was about. And there's zero doubt, since she's making the income that she'll also probably be paying the entire CS.

Your responsibility at this point is going to be to prove that you weren't mentally/physically in a position to work and now that you haven't worked for so long, you can't find a job. The argument will also say that your career choices and advancement opportunities are limited since you've been a homemaker for all these years. Her argument is going to be that you're perfectly able-bodied, could have worked the entire time and can work now. She'll most likely request that the court impute an income to you. This is all pretty standard stuff and the likelihood of a successful argument is with you...not her. As I've said, you'll likely be eligible for both SS and CS and she's gonna get screwed.

All that being said, I still think the right thing to do is to get a job. Not just for her sake but for your own and especially for your kid. I know from the experience of raising an adult child that one of the most important lessons a kid learns in life is to buck-up and not make excuses not to be self-reliant and responsible. One thing I stressed to my kids growing up was the need to have a strong work ethic and they prove to me everyday that it was one of the most valuable things I taught them.

The same gender parent is the behavior the child is most likely to emulate...and if I were you, I'd be extremely concerned about the message your kid is getting right now about what it means to be a grown-up. And don't think your stbx won't be seconding that message going forward...especially after she starts paying you every month.

[arabian]

It is decidedly wicked for someone in a position of power (your ex who holds the purse-strings) to threaten to cut the other person off financially. This is a stupid thing for someone to do as it will most definitely come back to bite them in the arse. In the meantime, however, you have to survive. The fear of having the other person pull the rug out from under them can be debilitating. I would strongly suggest that you seek legal counsel. A good lawyer will represent your interests and obtain an immediate Interim Order for spousal support and possibly and Order for exclusive possession of the matrimonial home until such time as the property is sold. I don't know specifically where you are at in terms of your separation. Best to get some good legal advice and do things the correct way right from the start.

[Pursuinghappiness]

It is decidedly wicked for someone in a position of power (your ex who holds the purse-strings) to threaten to cut the other person off financially. This is a stupid thing for someone to do as it will most definitely come back to bite them in the arse. In the meantime, however, you have to survive. The fear of having the other person pull the rug out from under them can be debilitating. I would strongly suggest that you seek legal counsel. A good lawyer will represent your interests and obtain an immediate Interim Order for spousal support and possibly and Order for exclusive possession of the matrimonial home until such time as the property is sold. I don't know specifically where you are at in terms of your separation. Best to get some good legal advice and do things the correct way right from the start.

Why exclusive possession? Interim support I agree but there's no grounds to take this woman's home.

[arabian]

He's the primary caregiver and I would presume child would stay at same school? Of course the couple could continue to live in the home together until it is sold. A lawyer would advise him on the tactical advantage/disadvantage of obtaining interim order which would include temporary residence of matrimonial home. Who knows? People on these forums rarely provide all the nitty-gritty details of their situation.

[Pursuinghappiness]

He's the primary caregiver and I would presume child would stay at same school? Of course the couple could continue to live in the home together until it is sold. A lawyer would advise him on the tactical advantage/disadvantage of obtaining interim order which would include temporary residence of matrimonial home. Who knows? People on these forums rarely provide all the nitty-gritty details of their situation.

Generally exclusive possession happens under extreme cirumstances...ie, abuse. It isn't advised otherwise for either litigant to leave their home because of the obvious issues it causes with custody status quo, etc. And to try to force her to leave with a court order isn't likely to be successful and would be a very hostile act.

I always find it interesting when people call the SAHP the "primary" parent as if that carries some special, magical designation to allow an unfair custody distribution against the parent that's out there earning a living every day to keep a roof over their child's head and food in their mouth.

This mom has as much right to her home, her money and especially to her child as any non-earning parent. In fact, I think what's she's about to undergo litigation-wise is likely to be very unfair.

[Janus]

Generally exclusive possession happens under extreme cirumstances...ie, abuse.

Nah, it is frequently ordered when one parent has primary residential custody. The idea is that the kid gets to live in the house and is not disturbed too much as a result.

It isn't advised otherwise for either litigant to leave their home because of the obvious issues it causes with custody status quo

Agreed, no parent should leave voluntarily. Exclusive possession is a weapon, not a shield. You can preemptively strike a decisive blow in the custody battle by getting exclusive possession. Once the other parent has been kicked out of the house, they will be financially devastated and will likely have to settle for much less than they deserve.

And to try to force her to leave with a court order isn't likely to be successful and would be a very hostile act.

Litigation is inherently hostile. And exclusive possession is not nearly as difficult to achieve as you might think. Easier if you are female of course, you just say that you are afraid or some variation upon that, but it should be possible for a male to pull it off.

I always find it interesting when people call the SAHP the "primary" parent as if that carries some special, magical designation to allow an unfair custody distribution against the parent that's out there earning a living every day to keep a roof over their child's head and food in their mouth.

Because, in family law world, the SAHP does get to claim "primary" which does have a special magical designation that allows for an unfair custody distribution against the parent who is out there actually working and earning money.

This mom has as much right to her home, her money and especially to her child as any non-earning parent. In fact, I think what's she's about to undergo litigation-wise is likely to be very unfair.

Of course it will be unfair. This has been happening to fathers for decades, are you actually surprised?

The best way to change it is for these horrible things to happen to mothers. Stay at home fathers need to stop agreeing to shared and need to start eviscerating mothers who work. Stay at home fathers can win. We need to stop telling fathers to be nice.

Stop lying to this guy. If he goes to court, he will win. If enough fathers do this, eventually the laws (or at least the case law) will change. Right now though, he is looking at a slam dunk victory if he is willing to fight. That is good for him, good for fathers, and good for all children in Canada.

[Pursuinghappiness]

Nah, it is frequently ordered when one parent has primary residential custody. The idea is that the kid gets to live in the house and is not disturbed too much as a result.

Only IF the other parent is suggesting to move the child out of the home to a new residence. Particularly one in a new school district. If she's not planning to do that, exclusive possession is unlikely to happen. And he didn't suggest that she's trying to do that. Judges don't like to kick people out of their home and not force them to lose access to their children. This is HER home. She's paying the bills and this is a commonlaw situation which has slightly different marital home division rules.

Agreed, no parent should leave voluntarily. Exclusive possession is a weapon, not a shield. You can preemptively strike a decisive blow in the custody battle by getting exclusive possession. Once the other parent has been kicked out of the house, they will be financially devastated and will likely have to settle for much less than they deserve.

Again, judges know this so they're not likely to just kick her out. I know a LOT of people that try this move and I know only one that's been successful (it was a man actually) and ONLY because the other person's lawyer was an idiot and missed the exclusive possession order in the filing.

Litigation is inherently hostile. And exclusive possession is not nearly as difficult to achieve as you might think. Easier if you are female of course, you just say that you are afraid or some variation upon that, but it should be possible for a male to pull it off.

Just as long as he understands she can also get hostile. In my opinion, its something that should be avoided if at all possible. And that has nothing to do with differences in gender roles in this case.

Because, in family law world, the SAHP does get to claim "primary" which does have a special magical designation that allows for an unfair custody distribution against the parent who is out there actually working and earning money.

That is starting to change though...as it should. And I'm equally as critical of the women who pull this stuff.

Of course it will be unfair. This has been happening to fathers for decades, are you actually surprised?

The best way to change it is for these horrible things to happen to mothers. Stay at home fathers need to stop agreeing to shared and need to start eviscerating mothers who work. Stay at home fathers can win. We need to stop telling fathers to be nice.

I disagree. I think the rules are changing to be fair to working people. Punishing working mothers is equally as bad. I stand up for every working person regardless of gender. What really needs to happen is that adult people need to stop tolerating other adults in their house not earning a living. All adults should be contributing to their household and supporting the children of those households. That is one of your main duties as a parent.

Stop lying to this guy. If he goes to court, he will win. If enough fathers do this, eventually the laws (or at least the case law) will change. Right now though, he is looking at a slam dunk victory if he is willing to fight. That is good for him, good for fathers, and good for all children in Canada.

You obviously didn't read my posts. I said 10 times that the law favors him...not her...because she's been stupid and allowed him to take advantage of her for years. I didn't say he wouldn't win...I said its unfair. Regardless of gender...its immoral and unfair...period.

People who do this stuff are simply trying to get away with not being responsible and forcing other people to fund their lazy lifestyles. And trust me, I say the same crap to long-term SAHMs...I have no respect for people who don't contribute to the financial burden of a household and then expect someone to take care of them endlessly after divorce. Its ridiculous. If you've ever read my posts....you've seen me ranting about females that do this. I'm not going to say its ok for this poster because he's male...its equally as shameful.

[arabian]

Like it or not, courts view marriages where one does not work outside of the home as "traditional." There is much case law and literature on this so there is no need to re-hash the topic. Agree or disagree. It matters not.

When there is a power imbalance (as in this case) courts will typically side with the individual who has no income for an INTERIM Order of exclusive possession - at least until outstanding financial matters are resolved. So the mother (in this case) should get her shit together asap as opposed to attempting to drag things out.

[Pursuinghappiness]

Like it or not, courts view marriages where one does not work outside of the home as "traditional." There is much case law and literature on this so there is no need to re-hash the topic. Agree or disagree. It matters not.

When there is a power imbalance (as in this case) courts will typically side with the individual who has no income for an INTERIM Order of exclusive possession - at least until outstanding financial matters are resolved. So the mother (in this case) should get her shit together asap as opposed to attempting to drag things out.

Actually the most likely scenario is that they'll live in the house together until the disposition of the house is decided. That's generally what happens. The only thing he's likely to get for an interim decision is SS...and that won't happen until after he can file a motion post 1st case conference. Until then, her lawyer will tell her to bare bones support the bills...particularly if he's able-bodied. Most litigants end up living together separated. Judges aren't likely to kick her out of her own home that she's paying all the bills in away from her kid. He's welcome to try but I'll bet it doesn't happen.

The most likely scenario is that this litigant is going to have to find a way to support himself or borrow money until he gets interim support.

If she's smart, she's already gotten a lawyer. And don't forget, this is a commonlaw relationship...so the marital home rules are not the same.

And by the way, the REASON that women get exclusive possession of the home at all is largely because they make false abuse allegations. It happens all the time. They initiate a fight, it escalates, they call the cops and get a police report, then they take the police report to court. You can't just kick someone out of their house..especially when they're paying all the bills...without a reason. This is the main reason that abuse allegations are so prevalent in early separations.

[arabian]

Hopefully the two can come to an agreement and avoid litigation.

People are stubborn though. A trip to the local family law centre, and then on to free legal aid lawyer will provide the poster "wings." If the wife is smart she will make a reasonable offer sooner rather than later.

[AVCanada]

Woah, lots of assumptions happening here.

I'm not after the house, just my equity and child support for some breathing room of at least a year in order to get my life in order and make the transition for our son as tolerable as possible. Nothing more really.

Thanks for all the replies.

[arabian]

Yeah I guess from your perspective things sound pretty awful. Thing is, many people on here started where you are, with the best intentions and what they thought was a 'reasonable' position. What you may find out though, is that things can very easily blow up, particularly when one party takes an unreasonable position or obtains advice from friends instead of obtaining proper legal advice.

Hope things work out for you and that your ex is proven to be "reasonable."