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Sale of house and custody agreement.....need advice!!

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  • Sale of house and custody agreement.....need advice!!

    So after 8 months the STBX finally agreed to 50 / 50 joint custody in a conversation we had and I agreed to list the house for sale sometime in October. However, I told her I wanted something in writing documenting the 50 / 50 joint custody (even if quick and dirty).

    Now she is saying that the agreement will take time but we will work thru over the 3 months that we wait for the house to close. And that the agreement will require back and forth. I think she is balking because CS is minimal in a 50 / 50 scenario and going to want to negotiate higher then table amount AS WELL as SS which there is no real entitlement.

    Basically she said if I don't sign to sell the house that 50 / 50 is off the table now! I feel like I'm being blackmailed and if I sign to list the house, then tomorrow she will use the same for higher the table CS, and then later for SS, and on and on. I can't believe she would use 50 / 50 as ransom to get everything she wants (and not entitled to).

    She is also saying if I don't sign to list that she will file a motion to have it sold and seek costs. Our case conference is December so motions would probably be in Jan.

    So any advice would be appreciated.
    1. The obvious - should I hold off signing to list unless she signs something around even the basic custody agreement i.e. joint 50 / 50? If so what's the quickest thing to pull together and have her sign?
    2. If I agree to sign and list as we work thru the agreement over the next 3 month close - what happens with the kids if we get close the closing date with nothing signed in regards to the children and just move into separate residences? FYI - While co-habitating in the matrimonial home over the last 8 months we have had a 2 - 2 - 5 schedule.
    3. Does anyone have a similar experience or general thoughts or advice on best approach to take?

    As always, the forum's thoughts are much appreciated.

  • #2
    It is blackmail, your custody arrangement has absolutely nothing to do with the sale of the house and you should remind her that it has everything to do with the best interests of the child, not selling the house.

    Comment


    • #3
      Thx and agreed that it is blackmail and should have no relationship with the sale of the house. But as all on the forum know individuals use many things to leverage what they want - fair or not, in the best interests of the children or not. So I'm still in this predicament and need advice.

      Any specific thoughts on where I should go from here or the questions above would be appreciated.

      Comment


      • #4
        AFAIK she cannot force you to sell the house, that sounds absurd. She can expect an equilization payment. It's up to you how you come up with the money.

        When the agreement is signed, the equalization would ordinarily be due within 30 days unless otherwise specified. "Otherwise specified" would be if you negotiated a time frame, or if you were able to give sufficient reasons to a judge to pay the amount in a greater time frame.

        You have 50/50 now, if I interprate your schedule correctly, you have had it for 8 months and presumably the children are doing well or she would have reasons to fight it (and so should you.) You have status quo. It doesn't matter if she agrees or not, unless she can come up with some material reason in the children's best interests to alter the schedule.

        You should be paying the setoff CS now. Hopefully you have. Paying this amount ongoing strengthens your position. If she sought to have more CS paid, she would arguing to change the existing payment, meaning she has to provide some compelling reasons. If you ended up in court and had never paid CS not only do you look bad, but the judge would be starting from scratch deciding if there should be a variance from the guideline amount.

        You should not be paying Spousal Support. She has not proved entitlement and likely is not showing a reason for a certain amount.

        What you should do is make an offer with a complete separation agreement without prejudice. This should outline the custody, residence of the children, how the schedule is split, the calculation of child support according to the CS guidelines including application of section 9 for shared parenting situations, and a fair calculation for equalization. There should be a clause stating that equalization will be paid upon sale of the matrimonial home. You send it to her and tell her that if there is anything she wishes to change she can send you a counter offer. Then ignore her. Don't bother with a lot of back and forth email crap, and for goodness' sakes stay off the phone with this. The more opportunity you give her to argue, the more she will do it.

        Comment


        • #5
          Any specific thoughts on where I should go from here or the questions above would be appreciated.
          Giving her what she wants and then hoping she will later give you what you want is not smart negotiation.

          Where will the children live when the house is sold? Has someone pitched a tent in a park while you guys hammer out an agreement? If not, what is your alternative?

          Comment


          • #6
            OrleansLawyer - your response makes total sense why would I negotiate what she wants now and HOPE she will give me what I want later. She has a place to move into that she takes possession in October - hence her urgency and claiming that I will "screw her" if I don't list. She would have to carry two places. LOL...I guess I would be the one pitching a tent in the park!

            Mess - you are interpreting the schedule correctly for the last 8 months and children have adapted well. So you are correct I have status quo on my side. I do not currently pay set-off Child Support - I pay 60% of all child care expenses and 50% of household expenses. So your suggestion is that I just start paying table offset amount - problem is I know she will not simply accept and I can't force someone to cash the cheque! Thoughts?

            Yes not paying SS has been my plan only way she would get is via obvious blackmail tactics!

            Agree with approach to send a complete separation agreement - only thing is she has not be forthcoming with financial disclosures - missing many assets. So would be difficult for me to calculate the equilization payment. What do you suggestion - that I simply leave this out? Or indicate that will be determined on another date to prevent holding things up? Really Custody, Access and Child Support are my main priorities.

            Comment


            • #7
              Don't let her blackmail you with the custody bull. If this ends up in court she must prove why 50/50 won't work. This will cost you time and $ in court....something that your respective lawyers should have already told you but then why should they at $300+ an hour. If you end up in court the first thing they will look at is your access schedule and if you don't have one they will send you off to family law mediator till you get one banged out.

              Comment


              • #8
                If you seriously think that you will send her setoff cheques and she won't cash them, then get into court now. You are in a completely toxic adversarial situation, she is not negotiating rationally, you did well sitting on the situation until you had status quo, but now it's time to act.

                I still recommend you send her an offer to settle outlining the current access, custody, the setoff CS and fair equalization. You don't want to go to court without a fair offer on the table. Her reaction to the offer reveals how she will go forward.

                Comment


                • #9
                  How IS a formal offer to settle made if there are no lawyers involved? Is it possible to do one, without having a lawer?

                  Comment


                  • #10
                    How IS a formal offer to settle made if there are no lawyers involved? Is it possible to do one, without having a lawer?
                    Form 18: Offer to Settle

                    Comment


                    • #11
                      You mean Form 18 in British Columbia? I looked before for a similar form for Ontario but found nothing. AFAIK in Ontario there is no required form for family court. I think there is one for small claims court.

                      Comment


                      • #12
                        Hmmmm. Well sometimes we just have to make an offer that can't be refused, lol.

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                        • #13
                          *deleted* I had posted incorrect info. Ooops. Seems there is NADA for FAMILY LAW, Ontario. A friend taking a 2 year legal assistant course said Rule 18 is "offer to Settle" but there's no form??
                          Last edited by hadenough; 09-24-2012, 08:30 PM.

                          Comment


                          • #14
                            Write up an agreement and email it to her, so you have a record of having sent it.

                            As for equalization without her financial disclosure, I would use an overly optimistic estimate of the assets she hasn't disclosed yet. Then, if she wants to argue the amounts are really lower, she has to prove it by disclosing them.

                            Tell her you aren't willing to list the house until the agreement is signed. If she takes too long and her deal falls through, it's her own fault for jumping the gun on her finances.

                            Comment


                            • #15
                              Thank you Rioe - interestingly I just emailed her a draft of the agreement in word and indicated the basic custody points in the body.

                              Like the idea of estimating assets she isn't disclosing and making her prove they are lower. Especially in regards to the jewellry.

                              The agent is coming next weekend to check our progress - I'll wait until after that to breach the topic of signing the agreement otherwise I can't possibly sign to list.

                              Comment

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