Equalization...

[Berner_Faith]

(for those who read my other post) Bf opened the documents received by the stbx's lawyer... it was a separation agreement they wanted final approval on, mainly because stbx is needing to remortgage (or rather wanting to) as she qualifies for a lower interest rate, which will be saving her a few hundred dollars a month...

We sent everything to our lawyer, not expecting a response until at least Tuesday (he was on vacation and then with Family Day tomorrow), however, he did receive an email from him tonight stating that if they are willing to sign the SA this should be done ASAP and he wanted to respond to the stbx lawyer stating everything has been covered in the SA and it is satisfactory to his client (bf)... which it is...one clause he didn't fully agree with (it stated that when the children are in his care he must take them to any extra curricular activities, however we are 3 hours away and may not always be able to make it), he talked to the ex, and they agreed via email that they will both just try their best, as there will be times that she can't take the children either...

Anyways... his lawyer goes on to say that he actually owes the stbx an equalization payment of around $2800, but because they put in the agreement that "no equalization payment will be made by either party" he says sign the agreement and don't worry/mention the equalization to the stbx as her lawyer should have caught it... his worry is that this may come up down the road and he could be in trouble with the courts for not paying her the equalization.

He has said that once the SA is signed by both of them and their lawyers, he will then talk to stbx and work out a payment with her directly, rather than go through the lawyers... in reality he knows she can't afford to continue to go to a lawyer, but he also doesn't want this to bite him in the butt a couple years down the road....

Should he take the lawyers advice and forget about it or in good faith, work with her on it? He is not out to screw her around and was actually going to suggest they put the money into an RESP for the kids, as he will have to withdraw from his RRSP for this payment.

 

[NBDad]

It's not worth fighting about 2800. Do what the lawyer tells you and don't say anything.

See, the other may be willing to forgo the equalization in the interests of getting things signed and over with. In any event it was THEIR offer to settle, if they didn't include equalization, then that's THEIR mistake and THEIR issue. (and like I said, there could be reasons why it's set that way)

Both sides had independent legal advice....his EX made the offer to settle which including no equalization as part of it. (again, presuming that this was done because she's running out of money and/or needs it completed to refinance...so she saves more money by settling up in this manner). He's as safe as it's possible to get, unless he mucks it up by saying something.

Mention it after the fact, and when she DOES get more stable, you can look forward to her trying to toss the whole settlement offer.

Short Form: If it was HIS offer to settle, you might have something to worry about. Since it's originating from the EX, look at it like the gift that it is, sign the damn thing and call it a day.

 

[Berner_Faith]

Thank NBDad... he is just worried that it may come up again and it will look bad on him..

The SA was actually one HIS lawyer made up, but her lawyer sent it to him to sign? Problem now is...looking closely at the agreement, there are a few points that have not been changed, but were agreed upon by both parties... nothing major but most likely not worth paying a lawyer over...

She is to sign the document first and then him, so now we wait again...

 

[Rioe]

What that agreement is doing is exactly legal. First, it lays out that the equalization payment is calculated to be $2800. Then it acknowledges that this payment will not be made.

This is a pretty standard legal situation - first you describe the right you have, then you waive it. You have to show you are aware of the right that you are giving up before you can do so.

So don't worry about paying the money anyway, or having her come after it later. The signed agreement indicates that it is no longer a concern.

Too bad your lawyer didn't explain it more clearly, but his advice to sign it is bang on. The ex must be giving up the equalization payment in hopes that it will hasten the signing. She probably realizes that it's not a huge amount anyways, and could easily be frittered away with a couple more lawyer meetings if she wanted to push the issue.

 

[Berner_Faith]

Thank you, that makes perfect sense!