How to proceed?

D

divot

New member
Folk,

Always find this site very helpful...

Currently estranged from my wife for over 1 year, and living under the same roof (different bedrooms). My wife started divorce proceedings April 2014, and we both have lawyers. We have both submitted FLR13.1 produced financial statements, full disclosure, etc... and were about to start the alimony / property division negotiations (actually pretty simple as 50/50 seems fair).

Anyway, without going into boring details, my wife and I now want to try reconciling but I want to 'draw a line in the sand' and separate our finances once and for all. It isn't the first time my wife has gone down the 'divorce avenue' and I suspect it won't be the last! I am actually quite happy to complete our divorce and then if we want to, just live together / cohabitate, but my wife wants to remain married.

Anyway, what options do I have for a 'solid' (I know nothing is perfect in law) agreement that separates our finances, gives my wife her 50 percent of assets completely under her control, but protects my 50 percent and any growth from any future divorce proceeding? My wife is in agreement and said she is happy to separate our finances, and if she wants to divorce in the future she already has her 50 percent and therefore the financial side is already covered. The only item that will not be divided is the house, which will remain in joint names and be divided 50/50 if we separate in the future.

Is a post-nuptial agreement a legal document? Should we complete the separation agreement, should we complete the actual divorce and then just live together?

Don't get me wrong, I love my wife (otherwise I wouldn't still be in this relationship), but want to reduce stress and financially plan for the future.
It sounds callous, but I don't want to go through the last year of working with lawyers (not to mention thousands of dollars) again if she wants to separate again in the future - at least I want an agreement that would stand up to scrutiny and mean I don't have to spend thousands again on lawyers and lots of time doing all the financial statements and stuff.

I will of course discuss with my current lawyer, but any suggestions / experience would be of benefit and hopefully save me time and money.

Thanks in advance
 
What you are discussing is called a cohabitation agreement.

This outlines the responsibilities, accountability and rules for finances for the cohabitants. It also includes property division if things should not work out.

Generally these should respect the family law act and not contradict it but in reality you can put in anything that the parties agree to, although it may not be enforceable. Like prenups, sometimes these can be found to be unconscionable and thrown out by a judge, but they are a start.

You can do one up yourself, look for templates online, or hire a lawyer to draft one for 1-2k.
 
A cohabitation agreement would be considered a domestic contract, so you don't need to have a separation agreement or divorce in place in order to draw one up. At least I think so.
 
The way I see this situation (of course this is just from the outside looking in) is that you are unsure of whether or not you want to stay in a committed relationship with your current spouse.

You are letting your spouse drive the bus so-to-speak. That may or may not work for you.

What are your real motives here? I kind of think that going into a potential reconciliation with one foot out the door is dicey. Perhaps it's time to focus some of your money on marriage counselling?
 
arabian said:
The way I see this situation (of course this is just from the outside looking in) is that you are unsure of whether or not you want to stay in a committed relationship with your current spouse.

You are letting your spouse drive the bus so-to-speak. That may or may not work for you.

What are your real motives here? I kind of think that going into a potential reconciliation with one foot out the door is dicey. Perhaps it's time to focus some of your money on marriage counselling?
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it seems to be the wife who cannot decide if she wants to be married or not. If she has threatened divorce a few times in the past then I don't blame the poster for hoping for the best but planning for the worst.
 
Congrats on reconciling and I hope it works out for you.

Given the length of your marriage, I think it's too late to try and separate financials while remaining married. I don't think an agreement like that will hold.

Is spousal support a given for your situation, or do you fall under the "rule of 65"?
 
I believe a separation agreement would probably be the most economical arrangement. I believe that specific dates (when you ceased living as husband/wife) and when you decided to co-op again would be important parts of your documentation. Not sure about the legal aspects - your lawyer should canvas opposing counsel case law.
 
I believe a separation agreement would be more useful than a last minute prenup, except they've agreed to remain married. assuming they're sharing a bedroom again.

Keep in mind that old offers/agreements from failed attempts at separating are not without prejudice and can be used following the successful separation.
 
divot, you haven't posted much, but you were asking basically the exact same questions 7 years ago. At that time you had been married 20 years? Maybe the rule of 65 is approaching?
 
very astute observation Paris... thus my previous post.

I'm sure his wife is quite well aware of the impact of their long-term marriage: indefinite SS.

I can't say I don't blame him to try to squirm out of this by seeming to appear to be reconciling, changing the terms of the marriage, and then separating. This is a tactic which has been tried by many before him.

Separate residences and share the wealth is a common track for other unhappily married couples. It's that or make the lawyers wealthy.
 
I honestly have never heard of the 'rule of 65' but will definitely research, meanwhile thanks for the honesty.

Heading into this latest round of Divorce negotiations (second in 8 years with same person) I fully expect to divide assets by 50 percent, and pay alimony of some sort for life. I do regret not completing the financial separation stuff 8 years ago - we spent 10K on lawyers that time, with nothing to show. It sounds callous, but wife felt so guilty about her affair back then that she was going to accept 50/50 asset split with no spousal support!

I am trying to be practical and my focus here is entirely on the financial stuff. Of course, there are a lot of 'feelings stuff' that cannot be ignored but I am doing my best to try and separate these feelings.

I do believe my wife uses divorce as a (expensive :-) threat to try and control me, however I won't allow this any more and am quite prepared to complete the separation process. Life is full of competing interests and trade-offs, and I am too old for certain types of stress!

What I want is to simplify my life... I want my wife to get whatever she wanted in the current separation agreement, and we are then financially unencumbered and can focus entirely on the emotional stuff.

I do not want this divorce, and I have already come to terms with its implications - both emotional and financial. Now my wife says she doesn't want the divorce so I am happy on the emotional side, but after I stop and think about financial reality I come back to the idea of being in the same position 5 years from now but now with more assets to divide. To give a concrete example, I run a successful business and my assets (to be divided 50/50) have increased by 3 million since the last (uncompleted) divorce, and by 1 million since the date of separation of April 2014!

From a purely practical perspective, staying in any relationship has risks, and it doesn't matter what form that relationship takes, it could be over in 1 year, 5 years, etc. We have already put considerable effort into the current proceedings and if it is going to fail I want to limit the financial implications based on today - I also don't want to be able to be threatened with divorce ever again!

As an aside, knowing what I know now, I would never recommend marriage to anyone without an ironclad prenuptial agreement - mixing the emotional and financial issues only muddies both! I also wish someone had explained the true contractual impact of signing that certificate 28 years ago!

It would appear to me that the only 'ironclad' way to meet my wishes is to complete the separation and then figure out a cohabitation agreement based on the separation agreement. I know that the separation agreement is what really matters, and a divorce itself is just permission to get remarried!

Alternatively, I just do nothing, resume cohabiting with my wife and if she threatens divorce go through the whole process again based on that date and time.

Trust me, I wouldn't be having this conversation if I didn't love my wife and want to stay with her! The simplest thing to do is just complete the separation, but I believe my wife when she says that how can we be working together in a relationship when we are trying to figure out a separation agreement at the same time!
 
It definitely sounds like you need a post-nup, not a divorce. I'm pretty sure a co-habitation agreement is only for people who aren't married. But you sound as though you want to get the financial terms under which you would stay married legally set out.

What is the main concern you are trying to address? I'm not sure there's any legal way to stop her from waffling on her decision to divorce or stay with you every few years. Is it your hope that knowing her equalization and SS numbers are frozen at 2014 amounts will discourage her from pursuing divorce again in the future?

It seems like you are trying to prevent the current preparation of financial statements from being a waste of money, by having the financial picture 'frozen' at the 2014 separation date, no matter what happens in the future. However, I think you might be making things worse. If your wife decides in a couple of years to divorce anyways, you would be then fighting two expensive legal fronts - you'd have to put together the financial picture AGAIN, and ALSO fight the reopening-the-post-nup battle.

Frankly, it's your large assets that make it expensive and lengthy. While I'm sure your finances are proportionally complex, the lawyers are probably also seeking to draw out the process to inflate their billing because they see just how much you are capable of paying.

You'd still have to consult a lawyer to see what is fair in the eyes of the law though.
 
The way I see it, as long as they are still married then the Divorce Act comes into play. In Alberta there is the Matrimonial Property Act to consider.

Sounds like you "want your cake and to eat it too"

I'm sure many married couples would love to get divorced (because they are no longer having intimate relations) and continue to live together.

It just doesn't work that way.
 
Rioe said:
It definitely sounds like you need a post-nup, not a divorce. I'm pretty sure a co-habitation agreement is only for people who aren't married. But you sound as though you want to get the financial terms under which you would stay married legally set out.

What is the main concern you are trying to address? I'm not sure there's any legal way to stop her from waffling on her decision to divorce or stay with you every few years. Is it your hope that knowing her equalization and SS numbers are frozen at 2014 amounts will discourage her from pursuing divorce again in the future?

It seems like you are trying to prevent the current preparation of financial statements from being a waste of money, by having the financial picture 'frozen' at the 2014 separation date, no matter what happens in the future. However, I think you might be making things worse. If your wife decides in a couple of years to divorce anyways, you would be then fighting two expensive legal fronts - you'd have to put together the financial picture AGAIN, and ALSO fight the reopening-the-post-nup battle.

Frankly, it's your large assets that make it expensive and lengthy. While I'm sure your finances are proportionally complex, the lawyers are probably also seeking to draw out the process to inflate their billing because they see just how much you are capable of paying.

You'd still have to consult a lawyer to see what is fair in the eyes of the law though.
Click to expand...

I think you understand...

There is nothing I do can to prevent / deter my wife from wanting a divorce again in 2,5, 10+ years time - apart from doing my best as her partner. We have already spent 10K on lawyers up to this point, and my wife recognizes that although I want to remain married (or at least live together) I have some conditions, namely financial separation.

I have made it very clear to her that she has rights, entitlements and already has Independent Legal Advice. She should receive nothing short of what she was going to ask for (50/50 asset division and life long spousal support - even after getting 3.5 million plus half the house!). The financial stuff is messy to separate (holding corp, active corp, etc) and I want that financial separation done once and for all now.

My assumption is that any legal document can always be challenged, but with ILA, full disclosure, fairness considered and no emotional coercion, it is hard to challenge. FYI... I will happily pay my wife her Spousal support as rent, or however she wants - and expect too!

Last time I was in this situation 8 years ago, I did nothing, and sort of just started co-habiting and therefore our separation back then was considered 'null and void'. This time, I won't start co-habiting (sharing a bedroom and attending events together) until there is full and proper financial separation.

I am prepared to complete our current separation negotiations, move out and see where things lead. However, this may cause additional stresses and if we get back together, it will end up costing more!

This really is where financial stuff mixes badly with emotional stuff in a marriage!

Bottom line... can a properly and fairly negotiated separation agreement be made into a 'iron-clad' post-nuptial agreement? And I assume I can pay spousal support to someone I am actually living with!
 
Why would you pay spousal support now? I can understand splitting the finances but starting spousal support seems strange. Unleased that's how you were going to share $$ continuing forward in the marriage instead of how you have done it in the past.
 
I am glad that you realize that any separation agreement you now make can, and likely will, be challenged down the road. Something that comes to my mind is the fact that you seem to be trying to mislead the court.

You want to set a cut-off date and go through equalization (but not get divorced). You then want to continue re-cohabitate and essentially start the matrimonial clock ticking again. I hazard a guess that many guys would like to do this, particularly later in life when fruits of labour hits harvest time.

Why not focus on your marriage and, if it fails, then you go forward like other couples do and go through divorce process? You say that you have no problem sharing everything and even go so far as to say you will pay spousal support immediately. Obviously you know your assets are going to take a substantial increase in the not-too-distant-future and you are trying to minimize your wife's portion of equalization. All it will take is a sharp lawyer, who has an eye to all those yummy family assets, to fight you aggressively in court. 10k is peanuts for couple who have assets in the millions.

Please correct me if I have missed something here. Have you run your game-plan through a lawyer for his/her legal opinion? Now THAT would be very interesting.
 
I still don't have a good grasp of the main concern you are trying to address.

Married people are considered a single financial entity by the law. You can't remain married and have effective financial separation. Family Law usually dictates that all assets are shared, all income is shared, all debts are shared. Even if one spouse did all the work or had all the luck, and even if one spouse didn't know anything about what was going on.

Pre-nups usually address what happens with premarital assets so there's no confusion or fighting about how they are divided in the event of divorce. Post-nups usually address premarital assets because the couple didn't have a pre-nup, or something unusual arose over the course of the marriage that could not be anticipated prior to the marriage, again, so there's less confusion or fighting in the event of divorce.

So what are you trying to accomplish?

Is it to make the already spent 10k to prepare the financial disclosure not be wasted? Maybe you could have her sign a document saying that should she seek divorce again in the future, all legal costs are to be paid out of her share of equalization. Or maybe just that she gets her half, less the wasted 10k from 2014. But honestly, someone with your income/assets can't possibly be petty enough to worry about wasting 10k, I hope. And no fault divorce law provides that everything is done fairly no matter who initiated the divorce or why.

Is it to prevent her from benefiting from any increase in the assets after the 2014 financial disclosure? I'm not sure there's any way to do that, even with a post-nup. If you stay married, you are therefore assumed to have been willing to remain financially entangled.

Is it to remain together as a couple, but be completely financially separated? Then you DO need to divorce, with proper division of finances and a set SS agreement, and then when that's completed and the divorce is final a year later, move in again and just live common-law with a cohab that clearly sets out the terms of your agreement not to mingle finances, if that's the financial situation you both really want. I guess it would be like being divorced from man #1 and having the assets from that and the SS as outlined in a separation agreement, and then moving in with man #2 and having a cohabitation agreement outlining how finances are not to be mingled. Only man #1 and man #2 are the same person - you.

To get good advice on addressing what you want, you have to be able to clearly say what you want!

I'm sure you are frustrated by your wife's indecision about your marriage, but you do seem like you are trying to be manipulative here, by trying to stop your wife from gaining anything monetary beyond 2014 levels should she divorce you in the future. The only purposes I can see for that are deterrence and punishment. Deterrence - if she wants to share in the financial increases after 2014, she has to stay married no matter how much she hates it ("Got you stuck now!"). Punishment - if she divorces you, she doesn't get the full money she is entitled to ("Haha, serves you right!").

It boils down to this. Money vs love. If you love your wife more than your finances, stay married and share the ups and downs of the future with her. If the money is more important, then you don't love her enough to stay married, and you should divorce.

You may find her reluctant to cooperate with divorce and then a common-law relationship however. I know I'd have trouble staying in a relationship with a man who just proved to me the lengths he was willing to go to, to protect his money instead of to love me.
 
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