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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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  #1  
Old 09-17-2019, 08:45 AM
cookiemonster cookiemonster is offline
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Default Setting aside a Separation Agreement

My ex and I had been together for 3 years. We signed a separation agreement detailing the buy-out by him of our jointly owned matrimonial home. At the time of signing, I was under severe emotional duress, recently had went through surgery, and a victim of domestic violence. My ex drafted up the separation agreement himself using a template that he found on the internet and just filled in the blanks. Neither one of us had ILA, nor did either of us do a full financial disclosure. I want to have the separation agreement set aside now that I have spoken to a lawyer and know what my rights are. The agreement he drafted is arguably in his favour, as he used the original purchase price for the property as the buy-out amount, instead of getting a valuation done on it at the time of separation. The property is now worth 100k-150k more than when we first bought it, but he did not allow for this in the agreement (big surprise). No children are involved. How can I fight this???
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Old 09-17-2019, 09:08 AM
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Janus Janus is offline
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Do you plan on hiring a lawyer?
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Old 09-17-2019, 09:11 AM
cookiemonster cookiemonster is offline
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Yes, I have spoken to a few already, but wanted to get the opinions from you members as well
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Old 09-17-2019, 10:00 AM
rockscan rockscan is offline
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An important thing to ask yourself is this—how much money will come out of what you think you lost for legal fees?

For instance...lets say the house was worth $100,000 more making your share $50,000. You then fight for that fifty grand and end up paying $40,000 in legal fees leaving you ten grand and several years of emotional distress due to the battle. Is it worth it?

If you have spoken to a few lawyers you should have asked them how much it would cost and how long it would take. I would also recommend you do a search on canlii to see decisions on having orders set aside for property.

You may also want to look at additional liabilities you had or assets you would have had to split as well.
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Old 09-17-2019, 10:05 AM
cookiemonster cookiemonster is offline
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Quote:
Originally Posted by rockscan View Post
An important thing to ask yourself is this—how much money will come out of what you think you lost for legal fees?

For instance...lets say the house was worth $100,000 more making your share $50,000. You then fight for that fifty grand and end up paying $40,000 in legal fees leaving you ten grand and several years of emotional distress due to the battle. Is it worth it?

If you have spoken to a few lawyers you should have asked them how much it would cost and how long it would take. I would also recommend you do a search on canlii to see decisions on having orders set aside for property.

You may also want to look at additional liabilities you had or assets you would have had to split as well.
Thank you.
Yes, I agree. The legal fees may be high, but the reward may be worth fighting for...
Everything else in the relationship was either purchased independently or already split 50/50. It is just the property that is causing issues...
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Old 09-17-2019, 11:36 AM
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Is any support being paid?

It could be reasonably argued that your ex agreed to the housing in return for support considerations.

And rockscan's point is also important. Do you have any other assets that were not included? Cars, pensions, bank accounts, debt (credit card and other debt). If you open this up you can be sure your ex will see this as a free for all on your financial position as well.

Last edited by Janus; 09-17-2019 at 11:40 AM.
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Old 09-17-2019, 12:13 PM
cookiemonster cookiemonster is offline
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Quote:
Originally Posted by Janus View Post
Is any support being paid?

It could be reasonably argued that your ex agreed to the housing in return for support considerations.

And rockscan's point is also important. Do you have any other assets that were not included? Cars, pensions, bank accounts, debt (credit card and other debt). If you open this up you can be sure your ex will see this as a free for all on your financial position as well.
Thank you.
No support on either side. He makes 70-80k more annually than I do. He does have a good pension, I do not have any sort of pension besides CPP.

We had a joint bank account, which we split evenly upon separation. Nothing else was in our joint names except the house.
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Old 09-17-2019, 08:11 PM
tilt tilt is offline
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You probably won’t get any support from a three year marriage, and the increase in his pension during those three years may not be huge. You said the property is worth 100-150k more “now”. But the important date is how much equity it had on the seperation date.

Before spending any money on lawyers, do up a net family comparisons (available from the Ontario Law Forms website) and fill it out to the best of your ability (don’t lean in to the temptation to overinflated his numbers). Like others have said, there may not be as big a payday as you expect. Be glad you are no longer tied to him and consider the “lost” money as money well-spent getting rid of him.

If you do pursue setting the agreement aside you probably have a good case if your ex did not disclose his assets/debts when you created the kitchen table agreement and neither of you had ILA (if he had ILA it would be worse, the fact neither of you did kinda counts in his favour too). If you separated a while ago there will be questions why you delayed advocating for yourself. If you are claiming IPV it would be helpful to have contemporary medical reports detailing the abuse/injuries n
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Old 09-17-2019, 08:24 PM
cookiemonster cookiemonster is offline
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Quote:
Originally Posted by tilt View Post
You probably won’t get any support from a three year marriage, and the increase in his pension during those three years may not be huge. You said the property is worth 100-150k more “now”. But the important date is how much equity it had on the seperation date.

Before spending any money on lawyers, do up a net family comparisons (available from the Ontario Law Forms website) and fill it out to the best of your ability (don’t lean in to the temptation to overinflated his numbers). Like others have said, there may not be as big a payday as you expect. Be glad you are no longer tied to him and consider the “lost” money as money well-spent getting rid of him.

If you do pursue setting the agreement aside you probably have a good case if your ex did not disclose his assets/debts when you created the kitchen table agreement and neither of you had ILA (if he had ILA it would be worse, the fact neither of you did kinda counts in his favour too). If you separated a while ago there will be questions why you delayed advocating for yourself. If you are claiming IPV it would be helpful to have contemporary medical reports detailing the abuse/injuries n
Thank you. We were not actually married. Only common law for about 3 years.

Can you explain the relevance of how much equity it had at the date of separation please?
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Old 09-17-2019, 08:40 PM
tilt tilt is offline
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Equity is the value of property after all debts registered against it are subtracted (market selling price - mortgage = equity). If the house is worth $300,000 you aren’t entitled to $150,000. First the mortgage is taken off the value and what is left is the equity. The only dates that matter are the date of marriage/cohabitation and the date of separation. Post separation increase/decrease in value is more complicated and less easy to prove an entitlement to.

Common law is different when it comes to property/assets. You may not be entitled to anything. Have a look through the common-law forum to see the differences in property division. https://www.ottawadivorce.com/forum/...splay.php?f=11 Here is a nice one-page summary: http://www.common-law-separation-can...ifferences.htm

(Child support is the same regardless of common-law or marriage and that is why a lot of people think marriage and common law separations are the same. Child support is the right of the child however, not the spouse)

Last edited by tilt; 09-17-2019 at 08:46 PM. Reason: Added links
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