Legally setting money aside

[evew]

Hi, I hope you can help me with my situation.

I just found out that my husband has an affair and his wish is that I will accept it. He did not know that I have found out the truth and that I am planning a divorce. In recent months, he has been writing out lots of cheques (around $500 every week) from our joint account and told me that he lost in gambling. I know the money is going to her but haven't confronted him yet.

My questions are:

1. I can't let him eat into our asset any further and I am planning to protect myself by setting aside money now. Are the debts or assets (under one of our names and not joint) be susceptible to the 50/50% rule at the time of splitup? If I withdraw money from the credit line or credit card now (still married) that is in my name, is he responsible for the debt?

2. I have some investments (non RRSP) that is under my name only and I am planning to transfer it to my parents so that the asset doesn't have to be split up with him. Can these investments be transferred without having any tax consequence?

3. I make 50% more income than him. He is now unemployed but is looking for a job. Am I in a situation that I will have to support him? Should I wait until he has a job before asking for a separation?

4. Can I transfer the asset to my young children (5 and 2.5 yrs) eg. RESP, bank account etc., without having to split it with him?

This is a very difficult time in my life. I can't stand someone not working, having an affair, and spending my money on someone else and lie lie lie all the time. Please help. Thanks.

[Fresh Starts]

First of all... go and see a lawyer.
Second... Make a copy / or get the originals from EVERY bank statement that you have. Circle the amounts of money that you know he withdrew from the account. (He will have to answer to each and every withdraw when you file for divorce and go into court.)

If you take any money out of credit cards/ line of credits etc.... you will have to answer for EVERY cent.

If you need to ... take out some money... but keep a DETAILED list of EVERY cent that you spend. And make sure that you have a VALID reason for spending this money.

I would also advise to write on the back or front of every cash withdraw you take out - what you spent the money on. Even if you only take out $20 in cash.

Keep ALL receipts.
Keep a daily log of EVERYTHING... so you have a reference to go by.
Not only with money, but what is going on in your life with you and with your husband.

PROTECT YOURSELF.

If it is due to gambling problem.... he will be responsible for it.
If he is giving it away he will be responsible for it.

I would change my bank account. So that he has NO access to it.
Keep paying the bills, etc.... but keep a record of EVERYTHINg.

I can NOT express that enough.

Good luck.

If you need to talk I'm here.

[Jeff]

Sorry to hear about the difficult situation you’re in evew!

The earlier in the process you at least consult with a lawyer, the better. I find often people wait too long to see a lawyer (it’s scary and expensive to do so) and often it would have been a lot easier for me to help if they’d come to see me even a few weeks earlier.

If you’re caught hiding assets, I think you’ll find that judges will treat you very harshly at every step of the process, and your divorce will probably blow up into an extremely lengthy and expensive matter.

You’ve also got an obligation in Ontario to disclose under oath any dispositions of property you made in the two years prior to separation.

Even if there are legitimate reasons for transferring the assets, it’s possible that your husband will argue that the date of separation occurred before the transfers, in which case in Ontario that would not affect the division of property, as property is divided as of the date of separation.

It’s clear that at the very least you need a plan regarding the treatment of the funds in your joint account. A lawyer can help you come up with this plan.

Regarding spousal support, I don’t really have enough information to say much. But, if your husband’s genuinely out of work and genuinely looking for a job, chances are if you separated you’d have to pay some spousal support until he found a job. Spousal support is "no fault" - it doesn’t matter about his affair or how he treats you.