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-   -   My lawyer:I get share of the house.Common-law's lawyer:I get nothing.True? (https://www.ottawadivorce.com/forum/showthread.php?t=21812)

Belle 04-26-2018 09:56 AM

My lawyer:I get share of the house.Common-law's lawyer:I get nothing.True?
 
Here's my story: Moved in with my common-law husband five days after our daughter was born, just under 12 years ago. He owns the house. I had just finished university and took some time off to care for our child - I didn't go back to work until she was in school. I work part-time, make little money, and he covers all the household bills while I pay for our daughter's expenses. I have also added quite a bit to the home - I paid for almost all of the furniture that is in the house, now. I even found a fire place mantel and purchased it and my husband installed it in the house. He commutes to another city and works very long hours. Our relationship is over and we are planning to separate in the summer. I went to see a lawyer who told me that I will make a "claim in equity." She said that my staying home with our child allowed my partner to be "unfettered" - my staying home with our child allowed him to work and pay the mortgage, etc.. She said more, but the point is that I get a share of the house because of that. My soon-to-be-ex went to see a lawyer and said that's not accurate (I saw a very smart, competent lawyer with an excellent reputation) and that would have to be "fought out in court." Can someone tell if me if that's the case...? Would I have to fight that out in court (I would have to represent myself because I could never afford a lawyer) or is it a situation where it's a no-brainer that I will get a settlement, so he is best advised to reach a settlement with me outside of court? Also, I was confused as to how the settlement is determined. I believe she said that we take the value of the house today minus the value of the house on the day I moved in, subtract one from the other, and then I get half of that amount. Does that sound accurate? My soon-to-be-ex is a very uninvolved father and, I found out much later, comes from a horrible, trailer park-type family. He wants me and my daughter to leave here with nothing. Not one dine. I gave up an apartment that I had for 8 years to move in here. He said that he didn't even want to pay me spousal support and was really disappointed when his lawyer said that he would have to! This is all new territory to me and if someone could answer my questions, I would be very appreciative!

rockscan 04-26-2018 10:46 AM

Leave all the hes a bad father and a trailer park trash dude out of it.

Did you ask your lawyer about spousal support as well?

You may want to look into legal aid to get a lawyer.

kate331 04-26-2018 11:09 AM

The good news is your educated, already in the work force and your child is old enough not to need daycare. The wheels of Justice in Family Court is sloooow, their first priority is child support which hopefully he will pay without going to Court. You may have to wait it out to get spousal support while it winds its way through the system. A lump sum would be ideal to get you going until self sufficiency. That may be your bargaining chip instead of a more complicated stake in his home, which could eat up your legal fees and sanity.

In the meantime, look for full-time work and start saving for first & lasts month rent.

Sucks that he works out of town, and may not be able to do his share of parenting.

Belle 04-26-2018 05:34 PM

I was just trying to paint a picture. He's not exactly father of the year material, and his family is one of the main reasons I am leaving him. They have caused me nothing but grief.

Rioe 04-26-2018 05:40 PM

You are common-law, and the house belongs to him. You don't get anything out of it unless he added your name to the title. You've lived rent-free for 12 years; that's your benefit as far as that goes.


However, the furniture belongs to you, from the sounds of it. You've just been storing it in his house. Maybe he'll buy some of it off you and you can leave it behind for him.



A completely separate issue: you and he both agreed that you would stay home and look after the child while he worked his long hours? Then he does likely owe you some spousal support, maybe a couple of years while you find better employment and can support yourself.


If he wants you to continue to do the bulk of the work raising your child while he has occasional access time, then he will owe you full CS based on his income.


Okay, so that's the black-and-white version of things.



The grey area is that you could argue something called constructive trust (I think? Brain fuzzy right now) which means that you invested effort and possibly money into his home and should see some return on that investment when you leave.


However, the grey area is where lawyers live, and they will happily convince you to argue back and forth until all your and your ex's money is in their hands. You can already see this by how your lawyer is telling you that you could get money from the house, and how his is saying no.


And no matter what the lawyers say, you can CHOOSE not to fight it in court. Court is completely optional and only become necessary if you can't come to an agreement yourself.


Propose he keeps half the furniture and pays you $X000 or some amount you consider reasonable, plus SS for a year or two, which should allow you some breathing room to find a new home and job. Or whatever you think is reasonable. If your ex is reasonable, he'll make a counteroffer, and maybe you can eventually meet in the middle.



Lawyers and court are only needed if one of you intends to be completely unreasonable.

kate331 04-26-2018 05:49 PM

Whats up with his family? If they start getting involved in litigation could be high conflict. They can add fuel to the fire.

Belle 04-26-2018 10:39 PM

@Rioce: Not true. I spoke to a very competent lawyer who said that the majority of people are misinformed when it comes to common law. She said that people come into her office and say: "Her name isn't on the title! Why does she get anything?" I allowed him to work crazy shift work and earn his good salary because I took care of our child. The lawyer I spoke to said that courts are most concerned with "what's fair" and me living here for 12 years and leaving with nothing isn't fair. Period. She has a law degree from U of T, so you'll excuse me if I take her word over your's.

Belle 04-26-2018 10:43 PM

@Kate. I fully expect his family to get involved in the litigation because they're stupid enough to think that they can beat me. They're the kind of people who know nothing at all about the world (worldview the size of a pea), yet think they are experts on any given topic. We are talking ignorant, trailer park folk - just right off the dumb scale. I'd welcome the opportunity to crush them in court.

rockscan 04-26-2018 11:07 PM

My lawyer:I get share of the house.Common-law's lawyer:I get nothing.True?
 
If it means she can suck you dry she will tell you anything you want to hear. Lawyers get paid no matter what.

Theres a forum thread on common law, you may want to read it.

ETA: http://www.common-law-separation-can...onial-home.htm

kate331 04-27-2018 04:56 AM

I hope you have better luck than me, even getting child support. If you qualify for legal aid then your OK going through the Court System. If he doesn't want to pay you anything and has money for legal fees and a family that will encourage him to litigate instead of settle, you may be in for a rough ride.

Start doing a ton of research on Canlii, if you have time during the day sit in Family Court to get a feel for it.

standing on the sidelines 04-27-2018 08:04 AM

Quote:

Originally Posted by Belle (Post 228324)
@Kate. I fully expect his family to get involved in the litigation because they're stupid enough to think that they can beat me. They're the kind of people who know nothing at all about the world (worldview the size of a pea), yet think they are experts on any given topic. We are talking ignorant, trailer park folk - just right off the dumb scale. I'd welcome the opportunity to crush them in court.

wow how insulting. My parents downsized to a trailer in a park due to health reasons.

with your attitude why are you on this site?? You already said you believe your lawyer over people here so why waste your time?

Janus 04-27-2018 08:47 AM

Quote:

Originally Posted by Belle (Post 228323)
The lawyer I spoke to said that courts are most concerned with "what's fair" and me living here for 12 years and leaving with nothing isn't fair. Period.


1) The courts dispense justice, not fairness. There is a critical difference there. They follow the law, and reach a resolution. Often judges will write "this isn't fair... but" and then proceed to make a ruling that is completely unfair, but is the law.


2) There is an exception, when it comes to children, courts can dispense something other than justice, because a different standard applies. Equalization payments have nothing to do with children, so you won't get much leeway there.


3) You aren't leaving with nothing. You are leaving with spousal support.


4) You can possibly argue a constructive trust, but your potential legal fees might dwarf anything you get as a result.


Quote:

She has a law degree from U of T, so you'll excuse me if I take her word over your's.
1) Another lawyer with a law degree said the exact opposite of your lawyer with a law degree. At least one of the lawyers with a law degree is wrong.


2) If you have a lawyer with a law degree, who you trust more than a forum, why bother coming to the forum?


3) Taking the word of somebody who expects to make thousands of dollars off of you is a sucker's bet.

HammerDad 04-27-2018 11:50 AM

The house belongs to the ex, and you don't have an entitlement to it unless you make a constructive trust/unjust enrichment argument:

https://www.cleo.on.ca/en/publicatio...on-law-couples

https://www.familylawhelp.ca/common-law-division/

https://shulman.ca/common-law-relati...uples-ontario/

Berner_Faith 04-27-2018 05:05 PM

I bet if you had a friend call your lawyer who has a degree from U of T and say her exs name isnt in the title and they are common law and her ex wants half her house that lawyer would tell your friend the exact opposite of what she is telling you.

If youre going to believe everything your lawyer says I hope youre a millionaire and have endless funds to fund this court battle. You should educate yourself on common law vs marriage. It is completely different rules. But its okay you dont believe people on this forum, only your lawyer


Sent from my iPhone using Tapatalk

arabian 04-27-2018 06:21 PM

It wouldn't hurt for you to seek out advice from another lawyer. If you don't work or have little income you can go to Legal Aid and see what they can do for you.

Perhaps you are at a point in your relationship (end) when emotions run high. Instead of threatening each other with legal action perhaps try to have a discussion on what the two of you can plan for daughter's future. It sounds that you both acknowledge that the home will be sold. Something that lawyers will not tell you is that unless the two of you come to an agreement the money from proceeds of sale of home could be held in a lawyer's trust fund until agreement is reached. You have to realize, sadly, that lawyers make money when people split up and can't come to an agreement. Lawyers love it when people want to "duke it out" as this simply means: billable hours for them. Meanwhile the people involved in the dispute can't get on with their lives.

I think you have received some good advice with regards to getting yourself set-up so you are able to support yourself and provide a nice home for your child. Your daughter is now 12? so you aren't looking at babysitting or daycare expenses and you can now go into the workforce full time. Hopefully you can come to a good arrangement where the father will play a significant role in your daughter's life.

My ex and I had totally different backgrounds. However, both of our families loved us. Remember, a person can't pick their family. They are what they are. If the ex-inlaws are nasty people then all the more reason to look to get a settlement worked out sooner rather than later.

If you live in Ontario and you want to go to court over this be aware that it will likely drag on for several years. It is a very slow process, and it takes many months just to get to the first case conference. These case conferences are in place to encourage people to come to settlement on their family law matters which they usually do (run out of money).

Very small percentage of family law cases actually make it through the case conference stage and on to trial.

Keep the fight clean and keep an eye to the future.

Belle 04-28-2018 05:37 PM

@standing on the sidelines: I am sorry if I offended you. I have a lot of anger for his family. They took private information about me and my family - which they were never privy to and only knew because their son, my spouse - invaded my privacy and has been doing so for the past 12 years. They took that information - that for other people without such horrific people in their "family" would remain confidential - and blabbed it all over town. They are horrific individuals who don't care who they hurt.

Belle 04-28-2018 05:39 PM

Thank you very much, Arabian. I very much appreciate your advice.

arabian 04-28-2018 06:22 PM

It is difficult, but imperative, as you move forward to try to leave the emotion out of everything. Stick to the facts. Always make sure that your allegations are corroborated by irrefutable evidence.

Judges do not care if you think your ex, or his family, are monsters. Judges hear inflammatory, high-conflict cases every day.....they've heard it all before. Therefore prepare your position in a fact-driven manner.

Belle 04-28-2018 11:11 PM

That's good advice. Thank you. This is all new territory for me.

cashcow4ex 05-03-2018 08:38 AM

As mentioned, Lawyers will say what ever it takes to get you into court for a long battle. This is how they make a living....they can earn a couple thousand off of ex's who settle and compromise or $50,000 + if they can get it to court!

They love to play up people when it comes to grey areas, which is exactly where you are in, even if you only have the very slightest of chance on winning any compensation.

Don't be a sucker like so many others. Do your own research and pick the winnable battles to fight!

Belle 05-03-2018 09:23 AM

@co
 
@cowcash4ex - I hear what you are saying, but this lawyer really attempted to discourage me from going to court. She said it would cost thousands of dollars and that it would be significantly cheaper to settle out of court. This is the same lawyer who said that I would have a share of the house - NOT 50% as other posters on here have been saying. I don't want 50% of his house. I just want what's fair, meaning the amount the house has increased in value since I moved in here, divided by 2. That's all, and I think a lot of people would say that's fair. I gave 12 years of my life to this man. I moved in here because I thought we were a family. Now he wants me and my child (our child) to leave with the clothes on our backs, essentially. Not happening.

kate331 05-03-2018 09:54 PM

On the other end, your ex lawyers is most likely telling him not to settle and take it to court as Common Law doesn't usually include splitting assets. If you qualify for Legal Aid would give you an advantage as you wont have to pay legal fees. But if he wins you could have to pay his legal fees. Its almost a roll of the dice what could happen.

plainNamedDad44 07-30-2018 12:27 AM

as far as I understand, your common law. His house is his. You have a clear case for c/s and s/s. But its his house. you would be wasting money on lawyers fighting that.

SadAndTired 07-30-2018 01:15 PM

I dont think you will get 1/2 of the increased equity of the house either. You didnt pay into it.

You could qualify for compensatory support if he has increased his standing at work while you cared for the baby.

Dont forget it was your decision to stay home too (and live with a man and have a child without marrying).

Janus 07-31-2018 09:47 AM

Quote:

Originally Posted by SadAndTired (Post 230074)
I dont think you will get 1/2 of the increased equity of the house either. You didnt pay into it.

If they lived together for 12 years, an argument could certainly be made that there was a commingling of financial assets. This would imply that she did in fact pay into the house in some fashion.

The difference of course is that it is not automatic. Belle was wrong in thinking that the courts would try to make everything "fair", courts don't care about fair very much at all. But I think other posters are wrong when they say that she has no chance. It is all about risk and reward. If the house went up in value by $400,000.... it would certainly be worth trying to get a piece of that.

Quote:

Dont forget it was your decision to stay home too (and live with a man and have a child without marrying).
I'm not sure what that has to do with anything. There is no blame. Marriage is a game with a winner and a loser. In this case, marriage would have helped Belle, but her failure to get married doesn't make her more or less deserving of money, it just makes her less entitled to it.


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