I have been married for about 20 years and have a child under 18. All property is in both our names as well as a couple of bank accounts. My wife has decided that she wants to leave the marriage and sign everything over to me, she said she will just take her personal possessions.
My question. Can we just go to a lawyer and have him write up an agreement transferring all property and assets to my name and giving me primary custody of the child? Can this be done or is it more involved? She is not seeking spousal support or any other money from me.
Yes, you can do it all yourself, but I would advise you to do it by the books, to protect both of you in the future.
Go to Staples or look online for a sample separation agreement. Then fill in the blanks with the information pertinent to your situation. Once you both agree with the content, you each take it to a lawyer for independent legal advice. The lawyers will advise each of you what the legal meanings and implications for what you are signing, and let you know if there is anything you are forgetting. Then you might want to amend the agreement based on what you have learned. Once you both have it the way you want, all four of you sign it. Then it becomes binding, and hard to reopen should one of you change your mind later.
There are four main issues it should cover. Sample ones should include them all.
Equalization: This is the division of assets and debts. Each spouse should leave the marriage with approximately equal net worth earned during the marriage. After such a long term marriage, you probably don't have a clue what your pre-marriage net worths were. So the easiest thing to do would be to just divide things. This can be done by you taking some assets and debts and her taking some. And, if you both agree to the division not being equal, that is okay. So if she takes some of her property and you get the house and contents, and you both think that is fair and won't argue, great! You should each prepare a form 13 Financial Disclosure statement, so that it's clear what the net worth is, and where each bit of it is to go. If you are both in agreement about dispensation of all the property, you can save a lot of money by not having appraisals and valuations done.
Spousal Support: In theory, an adult ought to be able to support him/herself after marriage breakdown with no help. In reality, some spouse's careers get disadvantaged in favour of the other's during a marriage. Spousal support can help compensate for this. And some long term marriages are from a different era where the homemaker is unlikely to have a career at all. You don't say if your ex has an income, but it sounds like this won't be an issue. So you include a clause the dispenses with spousal support and says neither spouse will be able to come back and ask for it.
Child Custody/Access: Sounds like you both agree that your child should stay in the same home with you, due to your ex's plans to travel. I feel sad for your child, to have the mom up and leave like that. The child is likely going to feel horribly rejected (I suspect you may share that, but you have more maturity to deal with it), and you may want to seek some counselling for her. Do you think you'll be calling the mother for her input on big decisions for education, medical, religion, etc matters? Or will that be falling solely on you as she'll be out of touch? Have a deep conversation with the ex about this stuff. This will decide if sole or joint custody is where you end up. If you still get along well enough to discuss and make decisions for the child, joint is the best way to go. As for access, it sounds like it will be entirely with you, but you may want to include some stuff about how the child will spend time with the mother, such as during school breaks and summer, and when the mother happens to be back in Canada. Also encourage frequent contact via phone calls and email and videochat and so on. The child is going to need this contact very much.
Child Support: Your ex can't give this up, and you can't agree to it. No matter what you arrange between yourselves, an agreement can be reopened in court later if one parent requests that child support be done properly. It is every parent's responsibility to provide for their children, based on their income. If your ex is going to have an income, she's going to have to send part of it to you for the benefit of your child, as per child support guideline tables. If she has zero income, due to being supported by others, you can consider her income to be full time minimum wage, or higher if her education or circumstances (ie, past employment) demonstrate capability for higher earnings). And she will have to contribute, proportional to both your incomes, to extraordinary expenses like big medical bills or tuition fees.
Once you have these four issues in agreement, the lawyers will do their best to draw your attention to the areas where it is unfair, for several reasons. Possibly, it IS unfair, and they want their client to have a fair agreement. Many lawyers like to do a lot of back and forthing as it increases the bill. But in the end, the job you want them to do is make sure that their client understands what they are signing, unfair or not. Keep firm about what you want, and the cost can stay reasonable.
Once the agreement is signed, you bring it to a real estate lawyer to do the title transfer for the marital home, and the bank to change the mortgage names. The rest can be done yourselves, without the agreement. Close joint accounts, put utilities in the name of the person staying in the home, etc. In fact, do those right away before any weird spending happens!
Good luck!
