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  • Being raked over the coals...

    Hi everyone,

    Bit of background:

    Married end of August 2010, she moved out March 2011 by her choice. Lived together for 15 months before that. She is pregnant with my child(pretty sure its mine anyway) She had an affair in January which had ended and we were working on our marriage when she got pregnant.

    She is now hell bent on making me pay. I had purchased a house 1 month prior to being married, it is in my name only and only my name on the mortgage. She had helped pay for household bills when married. The money for the 20% down payment came from proceeds of my previous house i have had for 8 years, she lived in that house with me for a year before we sold it. She feels that she is entitled to what she calls the "equity" in the house. I have tried to explain to her that that down payment is exempt as per the law and that we are actually upside down in equity because prices have dropped since last summer. Of course she wont listen to a word I have said. Hopefully a lawyer will explain this to her because it is getting really frustrating for me.

    She said she is going to make me pay spousal support and feels that she is not responsible for any loss of value on the house. She is going to be moving 500 kms away when she gives birth so i may try to follow her to be close to my child. The kicker is i busted my butt last year working up north and made 163,000. She made 56,000.

    I was curious what people thought her chances of getting spousal support would be and for how long?

    She has a federal job and is considering taking the 93% top up for the first year but is hoping to never go back to that job if she can retrain during her 5 years off without losing her position, so she will have to pay back that top up eventually.

    If i move down south to be near my child my wage will drop to 90,000. Will i have to pay spousal support based on my last year wages?

    Is it possible to have child support payments reduced because i would be taking a lower paying job to be near the child and to help raise it or am i going to be forced to pay like i was making an additional 75 grand?

    Its been very frustrating trying to figure out why she is so angry at me and why she is trying to take me for all i am worth. I am trying my best to remain civil in all this since there will be a child to help raise but its extremely difficult.

    Any thoughts or advice will be great, yes I have already contacted a lawyer and we are in the process of serving her with papers to try and get this marital property divided up.

    Thanks

  • #2
    You're in for a rude awakening on that down payment on the home. I learned that the hard way too.

    Comment


    • #3
      I am very sorry to hear your marriage dissolving.In many ways you're a very lucky man. Your spousal support obligation will be minimal ( in duration) given the length of marriage ( Your lucky in the sense of knowing this now not five, ten, fifteen years from now). I think one year spousal support is all you will pay. Lawyers will sort out the property very fast. Be careful of the lawyers, become knowledgeable very fast on how family works in Canada. Check in with this forum often tp get insight on your questions that will arise.
      Good luck to you.

      Comment


      • #4
        She's angry at you because you are a better person than her. You tired to work on the marriage after she cheated. I would be insisting on a DNA test (pretty sure isn't good enough). She is angry and wants to rake you through the coals because it is easier for her to project her anger outside of her than to take responsibility and ownership for her actions.

        Sucks to be you. Stay firm, stay protected legally, and stay level headed. This storm will pass and you will be the far better person in the end.

        Comment


        • #5
          I would concentrate more on the Child Support aspect. If the child is yours you're in for a lot more years of paying than the SS. Ask for a Paternity Test.

          Comment


          • #6
            You married her, the second you did so the house became the "matrimonial home" and regardless of where the down payment comes from she has a claim to the value of it....NOW that being said, you have indicated the value is negative, so she doesn't have squat.

            You need to get it appraised asap, so you can show the value as of the separation. (or close to it).

            She said she is going to make me pay spousal support and feels that she is not responsible for any loss of value on the house. She is going to be moving 500 kms away when she gives birth so i may try to follow her to be close to my child. The kicker is i busted my butt last year working up north and made 163,000. She made 56,000.
            She won't get sweet F4 all for spousal...6 months tops....she's capable of supporting herself, so you need to push that fact.

            She has a federal job and is considering taking the 93% top up for the first year but is hoping to never go back to that job if she can retrain during her 5 years off without losing her position, so she will have to pay back that top up eventually.
            She's taking 5 YEARS off? Mat leave is only for 50 weeks. Must be some special program? Regardless she has a job waiting for her, so you know what she is capable of making....use that.

            You cannot stop her from moving before the child is born, HOWEVER if you move to be closer and to be a part of the chid's life, then you can use the "new" income as the basis for CS. You need to be pushing to shared custody (50-50) right out of the gate. I would be requesting a paternity test as well.

            TLDR version: Get a paternity test, push for shared 50-50 right out of the gate, she'll get 6 months of spousal TOPS if that. She has a right to the value of the home, since there is a decrease not an increase, it would negatively affect the equalization.

            Comment


            • #7
              The section of government she works for has a program where she can take 5 years off without losing her position. It is not paid for of course with exception of the optional top up of wages during the maternity leave.

              I agree that when i married her the house became the matrimonial home. But from my research this means the value at the date of marriage until the separation agreement is signed. And that the money put into the house before we were married is exempt especially because I did not add her name to the title.

              I found this information on this website and have highlighted the part in bold. According to two lawyers I have talked to I am correct when it comes to that down payment value.

              Legal Information About Matrimonial Property in Alberta

              Division of Property

              ‘Matrimonial Property’ is all property acquired by spouses during the marriage. Generally, matrimonial property is divided equally between spouses when a marriage ends, unless the result would be unfair. Certain kinds of property acquired before the marriage may not be divided when a marriage ends. This is called ‘exempt property’. However, sometimes the increase in value of exempt property may be considered ‘matrimonial property’. Nonetheless, this increase in value may not automatically lead to an equal split. The Court will make a decision based on what is just and equitable.

              Property which may be divided includes, but is not limited to:

              • The matrimonial home;
              • Household goods (this includes almost all personal property used by family members);
              • R.R.S.P. and employment pensions;
              • Business interests;
              • Investments, stocks, bonds;
              • Cars; and
              • Other property that has been purchased during the marriage or brought into the matrimonial relationship, or used for the mutual benefit of the spouses.


              Property which may not be divided includes:

              • Property acquired by one spouse before the marriage;
              • Property one spouse received as a gift;
              • Property one spouse received by inheritance;
              • An award or settlement for damages in tort law in favour of one spouse (i.e. money paid for pain and suffering in an automobile accident) unless the award was meant to compensate both spouses.


              No claim by the other spouse can be made on the property listed above, unless it has been brought into the marriage. An example of this would be taking a home purchased by one spouse before the marriage and putting it under both spouse’s names.
              When I say the house has decreased, I mean the value has decreased since we lived in it. It has not decreased enough to erase all the money I put down on the house and therefore it is not upside down if it was to be sold as of right now.

              Yes, I will be requesting a paternity test. I do not want to have an invasive test performed when she is still pregnant but have read about non invasive procedures they can do in pregnancy. I am pretty sure she isnt going to get a test done during pregnancy without a court order and am not sure how long or how hard it would be to get one done. Perhaps it is easier to just wait until the kid is born? The problem with that is that if it isnt mine then I would think that i would not have to pay SS when she is off work, is that a correct assumption? I am hoping to get this property divided up and a separation agreement signed asap so we both know what we will have to work with in the fall when the baby arrives.

              As for Custody, my plan is to fight for 50/50 right off the bat. It is extremely important to me that I am in this childs life and help make decisions for this child. But with her most likely breast feeding, there is no way I will be able to have the kid at least 40% of the time when it is a newborn. Not sure exactly how that is going to unfold, I want to protect my rights as the father but at the same time I want to make sure that I am doing what is best for our child.

              I appreciate the advice this far.

              EDIT: I should add that I have gotten two realestate market analysis' done this month which is the month of separation. I believe I am correct in thinking that it is not necessary to get an appraisal done right now because even though we are no longer living together, if the house goes up in value prior to us signing a separation agreement, then that value is used and not that of the date she moved out?
              Last edited by locoroco; 04-18-2011, 12:17 PM. Reason: added more info

              Comment


              • #8
                Originally posted by Lococoin View Post
                The section of government she works for has a program where she can take 5 years off without losing her position. It is not paid for of course with exception of the optional top up of wages during the maternity leave.

                I agree that when i married her the house became the matrimonial home. But from my research this means the value at the date of marriage until the separation agreement is signed. And that the money put into the house before we were married is exempt especially because I did not add her name to the title.

                I found this information on this website and have highlighted the part in bold. According to two lawyers I have talked to I am correct when it comes to that down payment value.

                Legal Information About Matrimonial Property in Alberta

                When I say the house has decreased, I mean the value has decreased since we lived in it. It has not decreased enough to erase all the money I put down on the house and therefore it is not upside down if it was to be sold as of right now.

                Yes, I will be requesting a paternity test. I do not want to have an invasive test performed when she is still pregnant but have read about non invasive procedures they can do in pregnancy. I am pretty sure she isnt going to get a test done during pregnancy without a court order and am not sure how long or how hard it would be to get one done. Perhaps it is easier to just wait until the kid is born? The problem with that is that if it isnt mine then I would think that i would not have to pay SS when she is off work, is that a correct assumption? I am hoping to get this property divided up and a separation agreement signed asap so we both know what we will have to work with in the fall when the baby arrives.

                As for Custody, my plan is to fight for 50/50 right off the bat. It is extremely important to me that I am in this childs life and help make decisions for this child. But with her most likely breast feeding, there is no way I will be able to have the kid at least 40% of the time when it is a newborn. Not sure exactly how that is going to unfold, I want to protect my rights as the father but at the same time I want to make sure that I am doing what is best for our child.

                I appreciate the advice this far.

                EDIT: I should add that I have gotten two realestate market analysis' done this month which is the month of separation. I believe I am correct in thinking that it is not necessary to get an appraisal done right now because even though we are no longer living together, if the house goes up in value prior to us signing a separation agreement, then that value is used and not that of the date she moved out?
                I would add that she is entitled tl 50% of the debt too!

                If she stays off for 5 years I would ask that be income be imputed to that 50k mark after the first year. That's a choice she's making. That is my thinking on her self imposed pre retirement anyway.

                I find it incredible she's allowed to move 500k away with your baby on the way...of course that's if the baby is yours. Have you done the math?

                I wish you luck. Too bad we were not able to block the move pending the birth and custody/access issues pending...if the child was born it would most likely be a different story.

                Comment


                • #9
                  he problem with that is that if it isnt mine then I would think that i would not have to pay SS when she is off work, is that a correct assumption? I am hoping to get this property divided up and a separation agreement signed asap so we both know what we will have to work with in the fall when the baby arrives.
                  You likely won't have to pay SS anyway. It's 6 months to a year of spousal per year of marriage IF she can prove entitlement to it. (ie. she gave up a career/etc to be with you...)

                  Since the marriage is only a year in, and she has a government job that I assume she had when you married her...then entitlement is going to be damn difficult for her to prove...even assuming she can, then you are looking at 6 months to a year....more likely erring on the side of 6 months.

                  The problem is that if it is NOT yours, she can get you on the hook for CS anyway by naming you as the father since the two of you are still legally married.

                  That will make is much more difficult if it's proven it is NOT your child. So make sure you have a request for paternity on the go as well. You should start putting aside table amounts of support starting the month it's born, I would NOT pay it to her until a paternity test is completed or you are ordered by the court to do so...but I WOULD recommend you put it aside.)

                  The reason is that if you ARE the father, you will wind up paying that child support anyway, so if you set it aside, you don't get nailed with arrears, you have it to give her if needed.

                  You want to impute her income at that 50K mark after the first year, and accept it at 93% of that for the first year (due to mat leave).

                  After that, her not returning is her CHOICE, and with a child she MUST support herself and contribute to the child. If she chooses to underemploy herself, then her income (and subsequent contribution towards the child) should be set at a level she is proven to be able to make.

                  As for Custody, my plan is to fight for 50/50 right off the bat. It is extremely important to me that I am in this childs life and help make decisions for this child. But with her most likely breast feeding, there is no way I will be able to have the kid at least 40% of the time when it is a newborn. Not sure exactly how that is going to unfold, I want to protect my rights as the father but at the same time I want to make sure that I am doing what is best for our child.
                  AT most..breastfeeding delays overnights for 6 months to a year... after 6 months the benefits of breastfeeding drop significantly...past the 1 year mark the child will be on solid food anyway for the majority of their nutrition and thus it's no longer a factor.

                  In that instance, you want to ensure that a parenting plan is drawn up to gradually increase your time with the child as it's weaned off breastmilk.

                  Make sure you include a clause in the agreement to the effect that "until the child is X age or is no longer breastfeeding" that way if she decides to transition off breast milk sooner (some women have issues keeping up with the demand after a while) you aren't locked in to waiting for X amount of time.

                  I should add that I have gotten two realestate market analysis' done this month which is the month of separation. I believe I am correct in thinking that it is not necessary to get an appraisal done right now because even though we are no longer living together, if the house goes up in value prior to us signing a separation agreement, then that value is used and not that of the date she moved out?
                  Date she either moved out, or stopped contributing towards the expenses. If she moved out and wants to keep her equity in the home the same as yours,she should be contributing towards the mortgage/etc. If she isn't then she has no claim against the continued increase in valuation. So by the sounds of it, in your case the amount used is the date of marriage to date of separation.

                  Ensure you file form RC65 with CRA at the 90 day mark to cement the date of separation.

                  Comment


                  • #10
                    Thanks again for all the advice. I am now in the process of looking into Fetal Cell/DNA Prenatal Paternity Testing which can be done after the 13 weeks of pregnancy. I am not sure how readily available this option is to me and am having trouble finding places locally to get more information. Ideally i would like to know as soon as possible if it is my child as a lot of what my plans are(selling house, transferring jobs, etc) will be done based on the fact that it is mine.

                    Comment


                    • #11
                      I believe I am correct in thinking that it is not necessary to get an appraisal done right now because even though we are no longer living together, if the house goes up in value prior to us signing a separation agreement, then that value is used and not that of the date she moved out?
                      You are correct. In Alberta the value is not determined at date of separation. If you go to trial, that date will be used. If you are doing your own separation agreement, you can use a date you both agree on.

                      Something else that is different in Alberta, is dower rights. Your wife will need to sign off on her dower rights to the mat. home.

                      Dower rights were explained to me here
                      http://www.ottawadivorce.com/forum/f...html#post49872

                      Last edited by frustratedwithex; 04-19-2011, 12:35 AM.

                      Comment


                      • #12
                        Thanks for the info.

                        The latest is that I have asked her to either bring back the SUV(which is in my name but bought during marriage) or start making the payments on it until this is sorted out. Of course she said she cant afford it so she brought it back. She is furious at me for doing that but she has her own car to drive which she brought into the marriage.

                        The big thing she is really mad about is because i changed the lock to the house so she cant get in. I hope I am getting the correct advice on that, she moved out March 7th and only my name is on title. I believe that I have a right to protect whats inside the house. She does have a few things of basically no value left and I have told her that either the neighbour can let her in when im up north working, or i will when i am home. She is threatening to have the cops bust into the place which i believe is not correct.

                        If she moved out and she is not on title, its ok to change the locks, correct?

                        Tomorrow is the day she will be served papers to get moving forward. I believe she is starting to realize that there will be little she will get from this marriage since its so short and the house has went down in value.

                        I still hope to negotiate peacefully and fairly based on the law without wasting too much on lawyers but I am not holding my breath.

                        Comment

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