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-   -   "Clean break" vs claiming spousal support (https://www.ottawadivorce.com/forum/showthread.php?t=6548)

Laurie-Jean 03-28-2010 12:03 PM

"Clean break" vs claiming spousal support
 
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 03-28-2010 12:13 PM

Quote:

Originally Posted by Laurie-Jean (Post 37215)
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 03-31-2010 09:15 PM

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 03-31-2010 11:52 PM

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 04-01-2010 12:01 AM

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 04-01-2010 12:07 AM

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 04-01-2010 01:08 AM

Quote:

Originally Posted by Laurie-Jean (Post 37397)
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.

Quote:

Originally Posted by Laurie-Jean (Post 37397)
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.

Quote:

Originally Posted by Laurie-Jean (Post 37397)
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?

Quote:

Originally Posted by Laurie-Jean (Post 37397)
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.

Quote:

Originally Posted by Laurie-Jean (Post 37397)
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.

Quote:

Originally Posted by Laurie-Jean (Post 37397)
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 04-01-2010 08:23 AM

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 04-01-2010 08:49 AM

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 04-01-2010 10:28 PM

FRO is in Ontario
 
Yes, The Family Responsibility Office is in Ontario:)


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