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  Ottawa Divorce .com Forums > Main Category > Divorce & Family Law > Common Law Issues

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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  #11  
Old 12-22-2013, 02:06 PM
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Originally Posted by Just&Fair View Post
@Rioe: Mortgage is actually $1400 per month. The way my former lawyer explained it to me is that rent tend to be higher than half of the mortgage (depending of the mortgage of course). So if the market for rent is estimated at $1000 per month, I would have to subtract her half of the mortgage payments ($700), since I'm the one paying for her half, which means I would owe her $300 for every month spent in the home post-separation.
I did use $1400 for the mortgage. But you need to divide the $1000 rent figure you are using in half as there are two owners. You owe her only $500 in rent because you owe yourself the other $500. My math still stands.

Say there was no mortgage. The rent is $1000, divided between the two owners. You would owe her $500 for living there. Occupational rent.

Now add back in the $700 mortgage payment she owes you. Net effect is that she owes you $200 a month for every month you live there paying the mortgage in full.

Once you understand this and explain it to her, she may be more amenable to settling quickly, if the alternative is that all the money she thinks she could be getting is dwindling at a rate of $200 a month.
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  #12  
Old 12-22-2013, 02:57 PM
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It sounds like you're trying to calculate what she owes you for mortgage and what you owe her for rent together, when they're actually apples and oranges.

A mortgage is an investment - every time you pay it, you receive an increase in the equity of your property as well as the right to use of the premises (unless you've got one of those insane interest-only mortgages, which I hope you don't). You and your ex should be sharing the increase in equity, as well as sharing the expense of paying the mortgage.

Rent is not an investment, it is pure consumption - you don't get anything other than the use of the premises in exchange for paying rent.

Rent is the easier of the two to deal with - if you're living in the house, you owe her half of what the house would rent for every month, because she owns half the house. (You owe yourself the other half of market rent, because you own the other half of the house - you are both the (half) landlord and the tenant).

With the mortgage, she should be paying her half if she wants to benefit from the increase in equity. If she doesn't pay her half and you're paying the full shot, I think it would be reasonable to deduct the amount she didn't pay from any equalization payment down the road.

In other words, I suggest you deal with the occupational rent question now (because you're utilizing the premises now) and the mortgage question at the time of equalization (when you will be sorting out who owes how much of the main asset).

I'd forget about the operating costs of the house that you've been paying since she's been gone - you would have been paying something like that no matter where you were living, and it's probably not enough to be worth arguing over.

Similarly, I think your $30K down payment on the marital home is probably a sunk cost. If we weren't talking about a marital home - if it were a yacht or a ski chalet or something - you might be in a better position. It sounds to me like your lawyer is telling you what s/he thinks you want to hear.

Of course, I am not a lawyer and could be completely wrong about all of this.
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Old 12-22-2013, 03:21 PM
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It sounds like you're trying to calculate what she owes you for mortgage and what you owe her for rent together, when they're actually apples and oranges.
I would agree with this and would recommend keeping your division of asset (mortgage) issue separate from occupational rent issue.
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Old 12-22-2013, 03:23 PM
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Quote:
Originally Posted by stripes View Post
Similarly, I think your $30K down payment on the marital home is probably a sunk cost. If we weren't talking about a marital home - if it were a yacht or a ski chalet or something - you might be in a better position. It sounds to me like your lawyer is telling you what s/he thinks you want to hear..
They were common law. There is no marital home, there is no marital property.

Because they were jointly on the title and mortgage, it is a shared investment. They are business partners. I wouldn't even talk to a divorce lawyer about this, I'd talk to a lawyer who handles partnerships, but if you have a family lawyer with experience that can be ok.

Basic costs of maintainence are the responsibility of the resident, you can't be reimbursed.

You may be reimbursed for costs that add value to the property, or add significantly to it's useful life. Replace the roof, yes. Paint the living room, no.

Interest payments on the mortgage, IMHO from an accounting perpective may be reimbursed.

Any payment to principal is a capital investment; this includes down payment and monthly payments against principal. This is your capital investment and this should be paid out when the house is sold. First payout goes to mortgage and creditors( with claim against the house, such as contractors.) You get paid back your investment, and then the remainder would be any profit on the sale. Profit would be split according to fixed ratio, which in your case is 50:50.
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Old 12-23-2013, 07:25 AM
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Just use the spreadsheet, or give us the actual values and I redo it. Your lawyer is confusing things beyond belief. Trust claims aside, you have a business partnership in the ownership of the house, it is not family law.

The fixed ratio is 50% regardless of investment unless you have a contract to the contrary.

Additional mortgage payments by you increase your equity; they do not affect the "rent" and this should all be calculated separately, and then totaled.

Again, look at the spreadsheet and it will make more sense.
Ok. I will PM you the actual values.

I didn't want to complicate everything with the true breakdown, but I've used the spreadsheet and I do see what you mean.
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  #16  
Old 12-23-2013, 07:30 AM
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Here's one question. We both want the home to be sold. I obviously would like to sell privately. Can a judge order that a real estate agent be used?

I guess a judge could, if the parties disagree and there is evidence that it would be difficult to sell in private, but if there's no evidence that it could not be done privately, would a judge order such a thing?
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Old 12-23-2013, 09:22 AM
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A judge will order on the issues that are presented. A judge won't make an order like that unless one of you asks for it.

When one of you asks for it, they have to provide reasons, arguments, supporting facts. You can't just ask for something in court, unless it is clearly spelled out in legislation like child support. Even then, you have to word it properly.

Once it is asked for, the other party is able challenge it, try to shoot down the argument, show the reasons are false, show the facts don't match the situation. They are able to ask for their own idea, and support their own idea with reasons and facts of their own.

There isn't a simple answer for your question. You need to understand how this process works in order to use it properly.
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