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-   -   Validity of a Separation Agreement (https://www.ottawadivorce.com/forum/showthread.php?t=3719)

NewGirlfriend 12-09-2008 04:28 PM

Validity of a Separation Agreement
 
Hello everyone!

I apologise in advance as this will be quite long winded...

I have recently been separated (with separation agreement) from my wife of almost 30 years (she left me for a younger guy). The separation agreement described the division of all assets (house, contents and pension) valued from date of separation. The separation agreement stipulated two paymens from me to her (one for house and contents and the other for my pension). On the date of separation, we had the house appraised by an independent appraiser for $369,000 and as it stated in the separation agreement I paid her half of the residual value. Since then I renovated the house extensively and finally sold it for $459,000. She had signed all of the legal papers and the house was sold, but she and her lawyer have demanded the profits be put into a trust account as they want half of the sold value. I've put considerable money and time in renovating the house and did so under the good faith of the agreement. Did I screw up here? Is she really entitled to half the sold value? I believed that the division of property assets were from the date of separation and not almost a year later after all the renovations were done to which she has not offered a dime nor a minute of her time.

As I didn't realize she was going to do this, I had to take on a second loan to pay for the downpayment on another house that I had put an offer in (in good faith of course). Any idea what I can do to get that money out of the trust account and finally pay for this loan?

As an aside, she has taken the equilization of the first payout and essentially blew it. (Spent over $80,000 in five months on crap and a lifestyle she certainly wasn't accustomed to). Following which she has gotten herself fired from a job she has been at for over 16 years. Should I be responsible for this? She is now asking for more alimony. I feel like a vice has grabbed me just as I was starting a new life with a new girlfriend. Can anyone help?

Thanks so much!
NGF

FreeNow 12-09-2008 07:00 PM

I'm new here but have experience from a 3 year divorce battle. I will eventually tell my story.
The only way your ex can make a claim for the appreciation on the house since the separation is to challenge the separation agreement itself. Is it in order? Was the appraisal done a legal appraisal or just an estimate by a real estate agent. Did she have independent legal advice before signing the agreement. Was she competent to sign?
Marriage agreements (prenups, marriage and seperation agreements) are very strong since the Hartshorn v Hartshorn Supreme Court Decision.
You're fine

FN

Suchislife 12-09-2008 07:03 PM

You don't have to do something because your EX & her lawyer DEMAND it!!

Your net family property division is a division of all assets & liabilities ON THE DATE OF SEPARATION or sometimes referred to as the Valuation date.

Of course things are bound to change after a separation agreement is signed.
You were not wrong to use YOUR money to improve your home and then sell it.

As far as your EX asking for alimony (spousal support), she CAN apply to the court. Outcome determined by many factors.

NewGirlfriend 12-09-2008 07:08 PM

Hi Freenow

Thank you for your quick response. As far as I was concerned the separation was in order, the appraisal done by an accredited appraiser (the real estate agent appraised it much lower due to it's dated and in bad shape). Upon signing she did advise me that she had had independent legal advise.. but since then has changed her story... She is now saying that she never had a lawyer look at it and was forced to sign (which is bull, because her boyfriend's childhood big brother is a lawyer and that is who she told me took a look at it - he didn't have a problem with it) To add, she was quite competent to sign.

She now state that there are big problems with the separation agreement and wants to contest it. I am totally at a loss as to why... it was VERY fair... I guess it's greed.

NGF

FreeNow 12-09-2008 08:10 PM

It sounds sloppy to me. What have you got in writing? Did the relative lawyer add his sig anywhere. I question the validity of this separation agreement. I know your trying to avoid the tremendous costs involved in this, but make sure everything is done right. The courts are unforgiving of not dotting the is and crossing the ts.
Good on you for getting a proper appraisal o the property. That may save you.

Good luck
FN

Linjohn 12-10-2008 01:42 PM

NGF:

You didn't say if the house was transferred to you when you paid your spouse for her equity in the house and equalized the net family property. If so, since the house was in your name when it was subsequently sold, she has no claim to the increased value.

If you paid your spouse for her equity in the house but her name still remained on the title, she may have a case for claiming half of the increase upon the sale, as the court may consider that to be a down payment.

A Separation Agreement is a legally binding document and usually details issues such as equalization of net family property, division of property, disposition of any outstanding joint debts and payment of spousal and/or child support. Certificates, signed by both lawyers and stating their respective clients consulted with them, understood the contents of the Agreement and signed voluntarily, should have been attached to the Agreement, so I don't understand how your spouse can now come back and claim she didn't understand what she was signing.

Spousal support was based on the earnings of both parties at the time the Separation Agreement was signed, but there is a provision for either party to seek a reduction or increase if there is a material change in his or her financial situation. If your spouse has lost her job, that would constitute a material change in her financial situation and she may be entitled to increased spousal support.

You should raise your concerns with your attorney but, if he or she did not advise you to have the matrimonial home transferred to you when you paid your spouse for her half of the equity and it was still in both names when sold, I would suggest you consult with another attorney.

Linda

NoahJenda 12-10-2008 07:41 PM

In general, courts are reluctant to muck around with separation agreements. They're legally-binding contracts. In your case, a court will consider overturning the agreement if there wasn't full disclosure, there was coercion, or if she got bad legal advice/no legal advice (in which case, your attorney should have raised that red flag).

In short, it's tough to overturn separation agreements, for obvious reasons.

Her lawyer may be trying to frighten you or shake some money out of you. You're not required to respond. If you ignore the letter, she'll either have to keep badgering you (and continue paying legal fees) or file an application (and continue paying legal fees). In any case, she'll have to ask herself how far she's willing to take this, considering the very dicey prospects of success.

brettsea 12-10-2008 09:00 PM

Is there some where to get started with a separation agreement so the 2 of us can save some legal fees or does the agreement have to start with a lawyer any advice?Thanks

FreeNow 12-11-2008 12:49 AM

Quote:

Originally Posted by brettsea (Post 18209)
Is there some where to get started with a separation agreement so the 2 of us can save some legal fees or does the agreement have to start with a lawyer any advice?Thanks

Brettsea,
Lawyers are slimeballs, even if they are working for you. Their aim is to run up the bill. They don't work for you, they work for themselves.
Go to a mediator, preferably a lawyer, come up with a SA that you can both live with. The mediator will bring in 2 lawyers for 5 minutes to prove indipendant legal advice.
That is the cheapest way to do it.

It makes me want to vomit because of the way of the system harms families at their most vulnerable moments. The system protects lawyers more than it protects children.

FN

FL_Needs_To_Change 12-11-2008 06:30 AM

I'd like to add, that should she be successful in taking this to court to request an increase in SS, I would ask that the courts take into consideration the reasons for her termination, and also to input an income on her relative to her ability to be gainfully employed. Just the mere fact that she lost her job is not justification to overturn a legal separation agreement. State, that had the situation been that you had lost your job and lost the house, would the court award you SS now that she was the only party employed? Of course not! Also, given that you both honoured the agreement at the time of separation, anything that has happened since does not legally entitle her to come back for more, IE from the sale of the house. What you did was fine. You honoured your agreement to her, and you completed it in good faith BEFORE embarking on the renovations and subsequent sale of the home that became yours once the agreement was signed and fulfilled.

I do not think you have anything to worry about. These are just scare tactics on the lawyer's part. Stand your ground, and reiterate the content of the agreement, and her verbal notification at the signing that she had independent legal advice. Also the agreement must state something along the lines that both parties were capable of understanding the content, had legal advice, and were not under duress to sign etc. As this is customary in any agreement.


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