Common Law Separation

[AVCanada]

Hello,

I'll try and keep this relatively brief.

Just a few questions with regards to a possible common law separation.

I've lived with my spouse for 17 years. We live in a house we jointly own (have for 10 years) (**both names on title**) and have a beautiful 9 year old son. My spouse works, I do not. I am a full time homemaker and, technically, the primary caregiver to my son and have spent the most time raising him day to day, though we are both enormously involved with raising him. Due to generalized anxiety issues, I've not been employed, save for odd jobs, the entire length of our relationship.

My questions are thus:

1. Regarding the home. I pay the electricity and gas. She pays the mortgage or property taxes and has during the 10 years we've owned the home. I put up most of the down payment, as well as paid for a new roof. I do all the cooking, cleaning, laundry, yardwork, etc. Domestic chores, if you will. My question is am I entitled to half of the equity in the home if it was remortgaged or sold?

2. Spousal support. I don't have an income and our arrangement would be shared custody, 50/50.

3. Child support.

Any thoughts would be greatly appreciated.

 

[Janus]

1. Regarding the home. I pay the electricity and gas. She pays the mortgage or property taxes and has during the 10 years we've owned the home.

How do you pay for electricity if you are a stay at home parent?

am I entitled to half of the equity in the home if it was remortgaged or sold?

Your name is on title, why would you not be entitled to half of the equity? She would have to argue for an unequal division, and I don't think she has any real chance of successfully making that argument.

2. Spousal support. I don't have an income and our arrangement would be shared custody, 50/50.

If you were female, it would obviously be slam dunk indefinite spousal support. Even as a male though, I think you are a fairly clear cut case for spousal support. Minimum 10 years, probably more. How long have you been out of the workforce?

3. Child support.

Why would you not automatically get child support? She makes more than you. another no brainer.

Your questions seem to imply that you think you might not qualify for support because you are not married. The only major difference is that the matrimonial home division is not automatic, and you guys have been together long enough that for all intents and purposes you are married. 17 years is a long relationship.

 

[Pursuinghappiness]

It sounds like you're paying some of the bills. How have you been supporting yourself up until now? If she's been supporting you the whole entire time you've been not working, then you have a strong case for SS but if you've been paying half the bills on your own, she theoretically could make the argument that you do have some sort of income.

 

[AVCanada]

It sounds like you're paying some of the bills. How have you been supporting yourself up until now? If she's been supporting you the whole entire time you've been not working, then you have a strong case for SS but if you've been paying half the bills on your own, she theoretically could make the argument that you do have some sort of income.

Sorry, I should have explained. I have an arrangement with a parent for the hydro and gas payments. It amounts to approximately 180 dollars a month. I was also in a band for a couple years up until a few months ago, which was approximately 200-300 dollars a month.

Sorry for the confusion. I guess I was thinking in terms of a job, rather than little bits of spending money.

 

[AVCanada]

How do you pay for electricity if you are a stay at home parent?



Your name is on title, why would you not be entitled to half of the equity? She would have to argue for an unequal division, and I don't think she has any real chance of successfully making that argument.



If you were female, it would obviously be slam dunk indefinite spousal support. Even as a male though, I think you are a fairly clear cut case for spousal support. Minimum 10 years, probably more. How long have you been out of the workforce?

The entire length of our relationship.

As far as the equity goes, since she's paid for the mortgage, taxes, home insurance and compared to the small amount I've brought in (due to an arrangement with a parent) I thought this might be an issue.

 

[rockscan]

You better get your emotional/mental health in order because you will be imputed an income and will need to contribute. Even with 50/50 and/or SS, you have a portion of the relationship to provide for and you wont be able to live off the proceeds of the sale of the house forever. Add in legal fees and youve got some serious cash flow questions.

 

[AVCanada]

You better get your emotional/mental health in order because you will be imputed an income and will need to contribute. Even with 50/50 and/or SS, you have a portion of the relationship to provide for and you wont be able to live off the proceeds of the sale of the house forever. Add in legal fees and youve got some serious cash flow questions.

Yes, understood. I guess I'm dealing with the anxiety of having enough time to take steps to be able to return to school and eventually find a job while being in a position to take care of my son somewhat close to how I have been. This is all very stressful and, quite frankly, terrifying at times for me. I guess these aren't uncommon concerns for a stay at home, but regardless.

So I'd be imputing what exactly? The 180 I'm bringing in via an agreement with a parent?

 

[rockscan]

Your ex could argue for whatever field you worked in prior to staying home or a part time income of $25,000 per year with the expectation you will increase your income.

You will also need to prove your inability to work and a plan for moving forward for school etc. These plans could also impact your parenting plan for 50/50. She could argue that youre not fit and/or your school may impact your ability to parent. There are a number of tactics she could take which you need to prepare yourself for as well.

Im not trying to upset you or make you anxious, simply trying to prepare you for a battle that you arent truly seeing. This case is more than just the equity in the home.

 

[AVCanada]

Your ex could argue for whatever field you worked in prior to staying home or a part time income of $25,000 per year with the expectation you will increase your income.

You will also need to prove your inability to work and a plan for moving forward for school etc. These plans could also impact your parenting plan for 50/50. She could argue that youre not fit and/or your school may impact your ability to parent. There are a number of tactics she could take which you need to prepare yourself for as well.

Im not trying to upset you or make you anxious, simply trying to prepare you for a battle that you arent truly seeing. This case is more than just the equity in the home.

I know you're not and I appreciate all of the replies and help. I truly am clueless about a lot of this and trying to navigate through all of this has been incredibly difficult.

There was no field previously. She has supported me, more or less, through the entire relationship, (save for help from time to time from family) with the understanding that I take care of the home. When we had our son, it was decided that she work and I continue my duties at home and become a stay at home parent.

Where does the 25,000 come from?

 

[rockscan]

Its a part time job income

 

[AVCanada]

Its a part time job income

Meaning it would be expected I'd get one right off the bat?

Forgive me, I'm trying my hardest to understand. I apologize if it comes off in any other way.

 

[Janus]

$25,000 is full time minimum wage.

He has been out of the workforce for 17 years. There is ample case law on Canlii where judges don't even impute minimum wage to such people.

You will also need to prove your inability to work and a plan for moving forward for school etc. These plans could also impact your parenting plan for 50/50. She could argue that youre not fit and/or your school may impact your ability to parent.

Again, there is so much case law on this it almost oozes out of the screen. The father here is the primary parent, has been the primary parent, and by the case law, gets to continue to be the primary parent. He has been out of the workforce for almost two decades. There is no evidence that he is able to support himself in any manner.

I think he should go for primary residential custody and exclusive possession of the joint household. Women succeed with that nonsense all the time, his penis shouldn't disqualify him from using those same tactics. Offering 50% now is giving up a solid negotiating position.

He might even qualify for legal aid. He should look into that.

 

[Janus]

Meaning it would be expected I'd get [a job] right off the bat?.

Women who have been out of the workforce for 17 years are never expected to get a job right off the bat. Rockscan is completely wrong here. There would have to be a massive gender bias in family law for you not to have the same opportunity to go to school and improve your skills while getting SS and CS.

 

[rockscan]

Funny Janus that you take this stance since you normally beat a drum about how awful things are for men.

I was preparing him for the worst case scenario. He has a penis, therefore the courts will automatically be biased against him.

 

[arabian]

Receiving SS isn't as rosy as many would like to think. First of all, it is 100% taxable. So, you had better be very good at putting money aside for the big tax bill at the end of the year. Secondly, if one is merely surviving on SS, no contribution to CPP is happening. It may not be a big deal to you when you are relatively young but as you get closer to the time when you want to retire it will be a very big deal I can assure you.

Courts look at the overall picture. You may have been married for 17 years without much employment outside of the home. However, if you are relatively young and physically healthy you would be expected to make progressive steps towards "self-sufficiency." Going back to school is a very good idea if you intend to pursue something that will realistically lead to self-sufficiency.

If you have been a domestic goddess for 17 years then minimum wage working at McDonalds is not out-of-the question so brace yourself for your ex's lawyer to push this, particularly if you are in good physical condition. An anxiety order will not preclude you from looking for employment unless you are under the care of a medical professional with whom you are currently receiving ongoing treatment and who would be willing to attest to your inability to work.

I believe that there is value in working at home (as you have done) and you certainly should be given respect for your situation. Fortunately, the courts acknowledge people, like you, who have supported their spouses in their careers. Something that a judge would ponder would be, taking your education and past working history, would you be today had you not stayed home to take care of the family. That very question/answer may very well define your outcome with regards to Spousal Support, together with your age and length of your marriage.

Good luck

 

[Pursuinghappiness]

Receiving SS isn't as rosy as many would like to think. First of all, it is 100% taxable. So, you had better be very good at putting money aside for the big tax bill at the end of the year. Secondly, if one is merely surviving on SS, no contribution to CPP is happening. It may not be a big deal to you when you are relatively young but as you get closer to the time when you want to retire it will be a very big deal I can assure you.

Courts look at the overall picture. You may have been married for 17 years without much employment outside of the home. However, if you are relatively young and physically healthy you would be expected to make progressive steps towards "self-sufficiency." Going back to school is a very good idea if you intend to pursue something that will realistically lead to self-sufficiency.

If you have been a domestic goddess for 17 years then minimum wage working at McDonalds is not out-of-the question so brace yourself for your ex's lawyer to push this, particularly if you are in good physical condition. An anxiety order will not preclude you from looking for employment unless you are under the care of a medical professional with whom you are currently receiving ongoing treatment and who would be willing to attest to your inability to work.

I believe that there is value in working at home (as you have done) and you certainly should be given respect for your situation. Fortunately, the courts acknowledge people, like you, who have supported their spouses in their careers. Something that a judge would ponder would be, taking your education and past working history, would you be today had you not stayed home to take care of the family. That very question/answer may very well define your outcome with regards to Spousal Support, together with your age and length of your marriage.

Good luck

Yea I think this is dead-on.

Overall, it sounds like you're definitely eligible for SS. But there are some tactics your stbx can use as mentioned. She can make you prove that you're unfit to work at a regular minimum wage job and try to have an income imputed to you. She can also try to term your SS to a reasonable time for you to become self-sufficient.

On the other hand, you're going to be making the argument that you've been out of the workforce and even if you WERE totally fit, you won't be able to find immediate employment and also you were the primary caregiver for your child. This is a highly successful argument for most SAHPs.

Bottom line (and this isn't gender specific....cause I say the same thing to men on here), she put herself in this position by allowing you to stay home without earning an income and paying for your upkeep...and that was totally foolish on her part if she didn't mean to do that for the rest of her/your life. I have very little sympathy for people that allow that and then whine about SS. The bottom line is that no working person should tolerate supporting another adult person who isn't acting like an grown-up. (Sorry for the harshness, you seem like a very nice guy). So she's made her own bed, in my opinion.

I do have a question for you. If you've been unable to work due to anxiety...are you collecting any form of disability? I'd imagine that may be something that gets brought up.

 

[AVCanada]

Yea I think this is dead-on.

Overall, it sounds like you're definitely eligible for SS. But there are some tactics your stbx can use as mentioned. She can make you prove that you're unfit to work at a regular minimum wage job and try to have an income imputed to you. She can also try to term your SS to a reasonable time for you to become self-sufficient.

On the other hand, you're going to be making the argument that you've been out of the workforce and even if you WERE totally fit, you won't be able to find immediate employment and also you were the primary caregiver for your child. This is a highly successful argument for most SAHPs.

Bottom line (and this isn't gender specific....cause I say the same thing to men on here), she put herself in this position by allowing you to stay home without earning an income and paying for your upkeep...and that was totally foolish on her part if she didn't mean to do that for the rest of her/your life. I have very little sympathy for people that allow that and then whine about SS. The bottom line is that no working person should tolerate supporting another adult person who isn't acting like an grown-up. (Sorry for the harshness, you seem like a very nice guy). So she's made her own bed, in my opinion.

I do have a question for you. If you've been unable to work due to anxiety...are you collecting any form of disability? I'd imagine that may be something that gets brought up.

I'd like to make it clear that this whole issue isn't really about me, but about my son, and what I'm able to do financially during a difficult transition in his life. He needs me and I need to be able to offer him a place of residence where he feels at home with a parent he's relied on for his whole life. My mental health issues are manageable at this point, enough that I will be able to work when I need to - more or less when he's able to become more self-sufficient. I also want the impact to be minimal on the other end, so he's well cared for by both of us. We're on the same page in that regard, but during a rather heated argument, she basically said I shouldn't expect any support whatsoever and that she'd "find out how to do that", hence my posting here.

I am a nice guy. And while you are correct in saying I hadn't acted like a grown up before my son, I certainly have when it comes to helping to raise him into the wonderful child he is today and who doesn't deserve any of this. That's been hard work and I've done it well. I've provided a stress free home for my spouse to pursue her business interests, no different from the many SAHMs I know. I can't imagine they'd be thrown out into the world with nothing.

I'm not concerned much about spousal support as I think that would make things very difficult on her end. The equity and child support are the main issues here. I need time to get my new life in order for his sake. If this whole thing happens, I'm dealing with a major transition in my life.

 

[rockscan]

Prepare for a whole host of ugly to start coming your way. If you have any emotional instability, get some resources in place to help because this whole thing is not going to be pleasant and it will affect your psychological well being.

Also, start working on your plans. For instance, what you will do for employment and how you will achieve that. Look at your costs and potential income down the line. Also look at what will happen living wise in the short term and long term. What will you do as a transition and how will you get there. You should also start watching bank accounts, lines of credit and mortgages. Any debt you two incur will be taken off the value of the assets. If she starts racking up credit debt, any nest egg you were counting on with the sale of the house will be impacted.

Being smart and getting your ducks in a row is the best approach. Stop listening to what she says and focus on the long term plans.

 

[Pursuinghappiness]

Just to be clear. I wasn't being gender-specific. I'm equally as disdaining of men who tolerate women sitting around and not working and then complain about having to support them after divorce. Its just not a smart thing to do unless...as I stated...you're fine with supporting a non-working, needy ex-spouse for the rest of your life. And since divorced non-working adults and their children (usually women) are one of the biggest poverty groups in North America, I'd say its pretty foolish on both sides.

Adult people should have a responsibility to provide for themselves and their children in the event of a marital dissolution or death, etc. A huge part of the duty of raising children is the financial responsibility associated with having them and that responsibility should be shared by BOTH parents in case one suddenly isn't around. And divorce (or splitting up, in your case) is a very foreseeable possibility given the statistics.

Children shouldn't be burdened with the bad decision-making of grown-ups and the risks of not earning income are pretty evident to most adults. Your ex threatening not to support you, at this point, is simply stupid...she put herself into a position where she was tolerating the intolerable and now she's going to reap what she's foolishly sown.

Its great that you've raised a nice kid but being at home all day isn't a requirement to do that. I've raised great kids and worked full-time my entire adult life. That's frankly what most parents do. I consider it ridiculous to not at least get educated, have skills and keep some level footing in the workforce in case you need to go back to work and support yourself and your family at some point. You can say its all about your kid but if that was the case, you would have considered employment a necessity.

That being said, your situation is common-place and since your stbx has been an idiot, she's likely to now get stuck with SS....which is what the initial question was about. And there's zero doubt, since she's making the income that she'll also probably be paying the entire CS.

Your responsibility at this point is going to be to prove that you weren't mentally/physically in a position to work and now that you haven't worked for so long, you can't find a job. The argument will also say that your career choices and advancement opportunities are limited since you've been a homemaker for all these years. Her argument is going to be that you're perfectly able-bodied, could have worked the entire time and can work now. She'll most likely request that the court impute an income to you. This is all pretty standard stuff and the likelihood of a successful argument is with you...not her. As I've said, you'll likely be eligible for both SS and CS and she's gonna get screwed.

All that being said, I still think the right thing to do is to get a job. Not just for her sake but for your own and especially for your kid. I know from the experience of raising an adult child that one of the most important lessons a kid learns in life is to buck-up and not make excuses not to be self-reliant and responsible. One thing I stressed to my kids growing up was the need to have a strong work ethic and they prove to me everyday that it was one of the most valuable things I taught them.

The same gender parent is the behavior the child is most likely to emulate...and if I were you, I'd be extremely concerned about the message your kid is getting right now about what it means to be a grown-up. And don't think your stbx won't be seconding that message going forward...especially after she starts paying you every month.

 

[arabian]

It is decidedly wicked for someone in a position of power (your ex who holds the purse-strings) to threaten to cut the other person off financially. This is a stupid thing for someone to do as it will most definitely come back to bite them in the arse. In the meantime, however, you have to survive. The fear of having the other person pull the rug out from under them can be debilitating. I would strongly suggest that you seek legal counsel. A good lawyer will represent your interests and obtain an immediate Interim Order for spousal support and possibly and Order for exclusive possession of the matrimonial home until such time as the property is sold. I don't know specifically where you are at in terms of your separation. Best to get some good legal advice and do things the correct way right from the start.