"Clean break" vs claiming spousal support

[Laurie-Jean]

Hello everyone,
I'm hoping you can provide some thoughts and experiences that will help me to help my sister. She is 47 years old and 2 yrs ago this month, her common-law husband of 24 yrs left her. Since then, she has been off work on disability as his departure triggered a relapse in her mental illness. Based on the psychiatrist's report, her insurance company has determined that she is not eligible for an extension to her long-term disability past November 2010. CPP Disability has also declined her application for benefits. I am helping her to appeal these decisions based on her substantially diminished physical health.
She lives in the house they own together for which there is no mortgage and she pays all of the utility bills. (I'm not sure what their arrangement is regarding property taxes.) Naturally, he wants to either sell the house or have her buy him out. She is having difficulty making the decisions although I have confidence that, with my help, she will finally be able to resolve the issues related to disability claims and the division of the house.
The issue that is more difficult to resolve is helping her to make a decision on whether or not she should claim spousal support, and time is running out. Together we visited a family lawyer who strongly recommended she make the claim. Her ex earns at least $70k, she will earn about $30k tax-free until at least November. She is of the mind that a "clean break" or the removal of all ties to her ex is better. Her decision is also influenced by the negative emotional response she expects to receive from her Ex (and his siblings and mother and girlfriend) if she makes the claim.
Although I very strongly believe that, in her circumstance, spousal support is a necessity, I also need her to make the decision herself. Ultimately, she is well aware of the legal entitlement to spousal support, but is constrained by the emotional aspects that influence decision-making. I asked her to discuss the issue with her mental health nurse, and I am presently researching other local community resources from which she can get an independent opinions that will help her make the decision in this emotional context.
Alas, my question to you all...
Can you offer some info, insights, thoughts, experiences that I can relate to her that will help to inform her decision-making? Is "clean break" a myth? Is it possible? Is it desirable? In the pursuit of the "clean break", should she negotiate more equity in the house against an agreement to forego spousal support ) or is that approach always a no-win situation. Why should she claim spousal support? What are the good-news and horror stories out there that can inform her decision?
Many thanks in advance for your thoughts, advice, input...
Laurie-Jean

[dadtotheend]

In the pursuit of the "clean break", should she negotiate more equity in the house against an agreement to forego spousal support ) or is that approach always a no-win situation.

You read my mind.

You ask many open ended questions and I think you would be well served spending several hours reading the many many threads in this forum on SS and equalization of family property.

That she has been separated for two years and still has not brought forth a claim for SS will operate against her. He will argue that she's done just fine for a couple of years and therefore doesn't need it. That doesn't mean she won't get it, but the strength of her claim is diminishing as time goes by. She needs to get her claim on the record sooner than later. That doesn't mean necessarily running off to court, but at minimum she should send him a properly served letter stating that SS needs to be discussed.

Research her entitlement to SS, both quantum and duration, and measure it against his entitlement re equalization of (all, not just the house) family property before making an offer.

[billm]

She enjoyed his support for 24 years, they never married. Now she gets half the house for which he paid more for. I don't see how she is entitled to further benefits from him. Did she financially sacrifice for him? You don't state this so I assume not and as she was not his spouse, she should not expect continued support from him.

Your post is very open and sensible, but I don't see how as a non married couple, she should expect continued support from him as (presumably) she has already enjoyed this for 24 years.

If she needs support due to her diminished mental capacity, perhaps her family (you) should help her.

[Looking4Answers]

She is Entitled

She was with him a very long time, and did commit to that relationship just as he did. In the eyes of the legal system she is entitled to what is legally hers, as well as spousal. Most of us would prefer to make a clean break from our ex's but the fact is she entitled to spousal. She can receive her spousal support via the Family Responsibility Office and have his wages deducted from his salary. She wont ever have to speak to him.

Make her get whatever is rightfully hers.

[Laurie-Jean]

billm,
With all due respect, your input is not at all helpful. I asked for "info, insights, thoughts, experiences that I can relate to her that will help to inform her decision-making?" You make unsubstantiated assumptions and completely ignore the law that dictates her entitlements.
1. He did not pay for the house. In fact, the mortgage came out of the account into which her pay was deposited. Regardless, the law states that if they are co-owners, the property will be split 50/50.
2. He has not supported her for 24 years. Unlike him, she was employed through the entire duration of the relationship. Even when she was sick, she still received a substantial pay cheque.
3. Married or not, irrelevant. The law acknowledges that, despite the absence of a marriage contract, there exists a social contract on which the legal tenet of spousal support is based.
4. I am prepared and well-equipped to help her. The law says I shouldn't have to.
Your bias shines through billm.

[Laurie-Jean]

Looking4Answers,
Thanks for the tip on the Family Responsibility Office. Is that in Ontario? If not, does anyone know of an equivalent in Ontario?

[billm]

billm,
With all due respect, your input is not at all helpful. I asked for "info, insights, thoughts, experiences that I can relate to her that will help to inform her decision-making?" You make unsubstantiated assumptions and completely ignore the law that dictates her entitlements.

info, insights, thoughts, experience - I think I hit on all of those. I assumed as little as possible and based my input on yours.

1. He did not pay for the house. In fact, the mortgage came out of the account into which her pay was deposited. Regardless, the law states that if they are co-owners, the property will be split 50/50.

I agree, the house should be split 50/50.

2. He has not supported her for 24 years. Unlike him, she was employed through the entire duration of the relationship. Even when she was sick, she still received a substantial pay cheque.

So why does he have to support her now?

3. Married or not, irrelevant. The law acknowledges that, despite the absence of a marriage contract, there exists a social contract on which the legal tenet of spousal support is based.

The law treats married people differently from common law. Also my 'input' is that it IS different, and most people think that way is another assumption.

4. I am prepared and well-equipped to help her. The law says I shouldn't have to.

That's funny in a sick sort of way, well at least to me, that you make this point and agree with it.

Your bias shines through billm.

I don't believe that a financial obligation exists beyond the end of the relationship UNLESS it is due to something that happened DURING the relationship to cause hardship or unjust gains AFTER, like a business deal. I do believe that all gains from the relationship be split evenly (once common law or marriage is established). I am not clear on the 'bias' that you are referring to.

[Laurie-Jean]

It simply doesn't matter if you believe no financial obligation exists. This is an opinion that is contrary to the law. Yes, the law is different for married and common-law couples. But the law in this province agrees that regardless of the union, one can claim spousal support upon separation.

[lilyg]

Clean breaks and support

Currently and historically, women frequently have had less earning power than men. After 24 years of sharing the expenses and purchases, finances, etc., a standard of living is established. To be punitive in removing that standard for any one party as a result of divorce/separation is not moral, ethical or legal. Most settlements as I understand it, take into consideration the duration of the marriage/common law relationship, which builds some fairness into it. I think that there is always a question of what is fair and I think it's typical of people in crisis to want a clean break, men or women. However, there are established legal parameters to deal with the financial situations that in the long term, hopefully provide some equity. It's a tough call for your sister Laurie-Jean, I am glad she has you to support her through this.

[Looking4Answers]

FRO is in Ontario

Yes, The Family Responsibility Office is in Ontario

[Laurie-Jean]

Thank you to lilyg and Looking4Answers. It is very helpful to put it in the context of living standards and I will definitely talk to her about engaging the FRO.

[PandaMuse]

I would hope that this reply finds you before you have gone forward with FRO. Your sister expressed that she did not want to go forward with claiming SS because of moral reasons. Unfortunately Family Law (particularly in regards to common law) does not base itself on morals, it is based on greed.

My thoughts: Even by going through FRO the parties that your sister is concerned about offending will find out. PERIOD. Given what you have written about your sister, her mental state is fragile. This will put a huge strain on that, and in the long run may do your sister more harm than good.

Please take this into consideration before pushing her into something that she is not prepared to handle.

p.s. It truly is a great blessing that your sister has you to look out for her. I honestly believe that you are looking after her best interests. Please do not take what I have written as negativity, it is just my thoughts based on the information you have provided.

[rustedinnocence]

..ask her a few hard questions

If she shows to be entitled, then she can still have a clean break. Spousal can be paid out in a onetime lump sum amount.... not an ongoing monthly thing. The onetime payment will most likely be a lower amount but it will cut all strings in the future and she could invest it and do a monthly withdrawal from the funds while the base amount accrues interest & grows.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-comfficeffice" /><o></o>
As far as her being worried about what he or his family will think about her,,,, if he really cared about her and her well being, he’d be offering to help her become resituated and get back on her feet… same with his family members. Seriously, when all is said and done, she most likely will not see these people any longer. And in all honesty, when have you ever heard someone saying how fair their ex was too them? If she is just trying to save face, 10 to 1, face is already gone because of the brake up. IF she is entitled, why would she just let him keep it so that he can wine and dine someone else what is rightfully hers? That be like her footing the bill for some other women to be with her ex.<o></o>
Ask her this, on Christmas morning, when he sits around the table with his family and NEW GIRLFRIEND, does she think that they are wondering what she is doing or where she is at in her life? Will they care about if she has enough funds to put together a Christmas dinner for herself? I don’t think it will matter one bit to them? She will not have space in their thoughts.<o></o>
Not trying to be nasty here, but your sister sounds much like I use to be and that is co-dependent. She needs to take care of her and love herself. She needs to figure out why she feels she does not deserve it, and if she answers that she does deserve it, then she needs to figure out why she feels that she has to sacrifice what is rightfully hers in order to make other people like her?... (and I’m not saying she is owed spousal support… I have no idea what their relationship is about or has been about….i am just saying that if she deserves something, then she has to figure out what it is that keeps her from feeling like she deserves it) <o></o>
Again, I don’t know her story, don’t know if she is entitled or not, but I do know from what you are saying, she needs some reassurance and someone like you to help her find her worth again. She is worth taking care of herself.<o></o>