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Common Law Issues The law regarding common law relationships is different than in cases of divorce. Discuss the issues that affect unmarried couples here.

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  #1  
Old 04-14-2010, 06:00 PM
inthemeantime inthemeantime is offline
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Default He Left..Need Advice on Seperation Agreement

Hi as you can see this is my first post and would like to get some feedback and advice. Two weeks ago my common law partner of 9 years walked out…with no warning at all. He left me an email telling me he wasn’t coming home. All I could think of was what a cruel April Fools Joke he was playing on me. He left me alone with 3 children, 2 belong to him and one from my previous marriage.

He has agreed to let us stay in the home (which is in his name only) and he will continue to pay for the mortgage payments, house insurance, property taxes,etc. He also left me with the vehicle (which is also in his name only) he said he will pay for the remaining loan on that as well. Our family also spent the summers with our travel trailer at a nearby park, yes the trailer is in his name only and he wants to pay for that as well. We operated a home based business together as well, yes that too is in his name. He also has a full time job. He wants me to continue with the business because he knew how much I enjoyed it, okay, since I have been out of the job force for 10 years I guess it would be my only option to continue with it.
I guess you are wondering why did you leave everything in his name, well I went through a divorce 10 years ago and lost everything including my job, home, possessions and all my good credit etc. I did walk away with sole custody of my 1st son, which is all I wanted anyways. I had creditors after me and still do 10 years later, so we thought it would be best for him to leave everything in his name. I never thought we would ever be apart.

He does not want to speak with me, so our only means of communication is via email. It has been a horrendous 2 weeks but I need to move on with my life, especially for my children (who he has not seen since the day he left). Honestly I am just shocked…he was and still is the best thing to happen to me and I just cannot understand why he would just leave. He was the best dad and to think of what he has just done to our kids, breaks my heart.

This is my dilemma, could we still enter into a separation agreement stating out everything he is responsible for and what I am responsible for? I know he feels guilty for walking out on his family…and he has agreed to stand up and support his children, I guess this is his way of feeling better about himself.

Would a separation agreement help, in the event that he does eventually decide to pull the rug from under us?? I know it could/will happen eventually but I need to protect my children. I will not deal with lawyers ever again and go through years of battles…sorry did that once and it cost me a fortune. Plus he has agreed to put everything in writing. Does anyone know where I can obtain one?

So for now I am just living in the meantime.
Thanks for listening
  #2  
Old 04-14-2010, 06:12 PM
Mess Mess is offline
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If you want to stay away from lawyers and court, good for you, but be careful as you go.

His offer of house, car and business actually sounds decent, depending on the income from the home business. This is to his advantage, if you have the home business you have income and he won't be vulnerable to so much, or perhaps any, spousal support.

You should insist that everything is transfered to your name and he pays if off.

You should still total it all up and decide if it is a fair deal for you.

If everything stays in his name, then if he is paying the mortgage etc he could go after you for back rent later. You need to be clear that he is transferring full title to you.

You should get a separation agreement that says what you are doing with home, savings and investments, pension savings, the business, custody and support for the children. If you are in agreement fine. You still need to protect yourself in case he changes his mind in a year or two.

Right now he feels guilty. In a year he will feel he has done "so much for you" and he will regret giving away everything. You need to lock it down.

As much as you hate lawyers, you will have to hire one for an hour to look over the agreement and sign it off for you. Your ex will have to do the same. Otherwise it won't hold water.

Oh, and "obtaining" a separation agreement... There is a book + cd with all the details and tables and calculations etc. Get it at Staples or Chapters. The same info is available for free if you search the web, but the book is decent and you get it in your hands all at once.
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Old 04-14-2010, 06:51 PM
inthemeantime inthemeantime is offline
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Hi Mess, thank you so much for your response. I will definitely go get my hands on that book.

If he were to transfer everything into my name...wouldn't that mean I would have to put the mortgage, etc into my name as well?
Truthfully, I don't think anyone would touch me with my credit...LOL.

I have no problems working with a lawyer to look over my seperation agreement, so I know I am protected...I just rather have it done ahead of time to reduce the amount I have to pay.
  #4  
Old 04-14-2010, 07:44 PM
logicalvelocity logicalvelocity is offline
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Welcome...

It appears your heart is on your sleeve and are somewhat devastated - no doubt. I suggest take the time to ensure your children and yourself are well.

As per your inquiry...

1.) Section 54 of the Family Law Act of Ontario, R.S.O. 1990, c. F.3 as amended provides that "persons" may engage in Separation Agreement to settle their affairs.

Separation agreements
54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;

(b) support obligations;

(c) the right to direct the education and moral training of their children;

(d) the right to custody of and access to their children; and

(e) any other matter in the settlement of their affairs. R.S.O. 1990, c. F.3, s. 54; 1999, c. 6, s. 25 (24); 2005, c. 5, s. 27 (27).

2.) Specific criteria must be followed to make the "Separation Agreement" binding, See Section 55:

Form and capacity

Form of contract

55. (1) A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed. R.S.O. 1990, c. F.3, s. 55 (1).
3.) However, the court reserves the right to set aside any clause of the agreement if its in the children's best interest to do so. See Section 56(1):

Provisions that may be set aside or disregarded
Contracts subject to best interests of child

56. (1) In the determination of a matter respecting the education, moral training or custody of or access to a child, the court may disregard any provision of a domestic contract pertaining to the matter where, in the opinion of the court, to do so is in the best interests of the child. R.S.O. 1990, c. F.3, s. 56 (1); 1997, c. 20, s. 10 (1).
4.) Further, the court reserves the right to intervene when it comes to the support of said children. See Section 56(1.1.)

Contracts subject to child support guidelines
(1.1) In the determination of a matter respecting the support of a child, the court may disregard any provision of a domestic contract pertaining to the matter where the provision is unreasonable having regard to the child support guidelines, as well as to any other provision relating to support of the child in the contract. 1997, c. 20, s. 10 (2); 2006, c. 1, s. 5 (8).
5.) To bind remaining clauses of the Separation Agreement, specified criteria under statute must be followed. See Section 56(4), Subsection (a), (b) and (c).

Setting aside domestic contract
(4) A court may, on application, set aside a domestic contract or a provision in it,
(a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; (Full Financial Disclosure must be exchanged between the parties. If anything is left out, the Agreement may be set aside.)

(b) if a party did not understand the nature or consequences of the domestic contract; or (Both parties must seek independent legal advice or waive this right.)

(c) otherwise in accordance with the law of contract. R.S.O. 1990, c. F.3, s. 56 (4).
(Witnessed.)
6.) See Sub Section 56(7) of the Act:

Application of subss. (4, 5, 6)
(7) Subsections (4), (5) and (6) apply despite any agreement to the contrary. R.S.O. 1990, c. F.3, s. 56 (7).
Family Law Act, R.S.O. 1990, c. F.3
  #5  
Old 04-15-2010, 09:58 AM
representingself representingself is offline
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Hey there

I am sorry that you are going through the pain of separation again... and although you are hurting, you are doing the right thing by seeking out assistance/advice on how to move forward.

You are in a very precarious situation, now that all of your combined assets are in his name only. The laws regarding common-law relationships are different than those of marriage. There is no "automatic" entitlement to the matrimonial home...

It is crutial that you try to remain calm and collected when thinking about the financial aspects of your relationship. If he is offering the home, contents and car, and he is willing to sign legal documentation... then you should do so as soon as possible.

His guilty conscience may wain in time, or he may begin a new relationship (and his new gf may talk him out of giving you anything).

OR - he could slip up and do something that makes you angry, and you could lash out at him..... You've said it yourself, you've been through a divorce before.... all it takes is a misunderstanding/lack of communication or a ruthless Lawyer and all of a sudden the &*%$ hits the fan and the battle begins...

He said/she said/air of entitlement/fight for custody.... it can get nasty really fast...

You need to consult with a Lawyer, just be careful that he/she doesn't sink his claws in and fill your head full of delusions.

Good luck!!
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