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Separation Agreement Help

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  • Jun 15th, 2019 10:14 am
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[OP]
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Jul 30, 2005
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Separation Agreement Help

My sister in law and brother in law are separating. They have been married for 3 years, are 26yrs old and have 2 children under 3. They are so far apart on what they believe they are entitled to that making a separation agreement seems impossible. In my opinion he is making outlandish requests and is using the children as leverage to try and get more, but she doesn't fully understand what is fair either. Neither one feels like they need to pay the other, and both feel they should get the house and the other should leave.

The problem is they are both low income earners, they can't afford to hire 2 lawyers to take care of this separation and to draft an agreement. Is there anyway low income earners can get some legal advice? At least bare minimum for someone to hear the 2 situations and help determine what would actually be a fair agreement?

Questions like:
If its 50/50 custody with similar incomes who pays?
If both want to stay in the house, who leaves?

Some basic info on their situation if by some chance someone has gone through this before....
  • Mother used 40K saved before the marriage to purchase the house, house was purchased after they were married.
  • Cannot come to an agreement on the amount the person would need to pay the other to buy them out of the house (only $40k in equity in the home)
  • Both low income earners but husband does make more
  • Agreement was husband watches kids in the AM, mother in the PM.
  • Husband won't leave the house, feels the mother and the kids should leave.
  • Documented proof the husband doesn't actually want 50/50 custody, but belief is maintaining the claim to help better the position of keeping the house and not having to pay.
.
18 replies
Deal Expert
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Feb 24, 2003
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Each of them should contact the law society and each should get the name of a lawyer, but not the same lawyer, who they can go see or call to and get some free advice. The amount of time provided for free isn't high but at least the price is right.

They could also look into getting legal aid too.

In Ontario, I believe proceeds from a matrimonial home would be split evenly.

https://www.ontariofamilylawblog.com/20 ... -divorced/
Last edited by audit13 on Jun 12th, 2019 7:18 pm, edited 1 time in total.
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Dec 4, 2004
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For the custody question, do you actually mean 50/50 residence? Custody is the major decision making. Residence is where the child lives. Custody can be shared even when the child lives primarily with one parent. Usually, the parent who has primary care of the child will receive support from the other parent based on the child support guidelines. You can get an estimate here: https://www.mysupportcalculator.ca/calculate

As for the house, it is considered the matrimonial house, so it would be split 50/50. In general, it doesn't matter who contributed more to it. If one spouse wants to stay in the house, he/she will be required to "buy out" the other's share. In this case, both the equity in the house and the mortgage amount would be split evenly. For example, if the house is currently worth $500,000 with a $300,000 mortgage, each would share in the house would be ($500,000-$300,000)/2=$100,000. Therefore, the spouse staying would have to "pay" the other spouse $100,000. However, this is usually all accounted for in the financial disclosures each spouse must fill out, listing the value of all assets and debts each spouse would be assigned. In the end, if one spouse is retaining more assets than the other, an equalization payment may be required. The value of the house should be assessed by a professional appraiser and documented.

In the end, there is practically no way the husband can stay in the house and not have to make some kind of equalization payment to the wife.

If their incomes are similar, there will probably be no spousal support required from the husband.

I'm not an expert (other than dealing with my own separation and divorce), but I hope what I've tried to explain helps. I would strongly suggest getting some kind of legal assistance as this sounds like it could get very complicated if there is not some kind of agreement between the two.
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Mar 23, 2008
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Those people need to sit down with someone that can provide the guidance they need. Any advice given in a forum like this based on third hand information is almost guaranteed to be wrong.

The Law Society can help. The local family court probably has resources they can direct them to.

To attempt to given some rough answers, though...
1) In a case of 50/50 custody and equal incomes, there would be no transfer of money.
2) Neither of them has to leave. Until there's a separation agreement, they have equal rights to the house.
3) If they can't decide what to do with the home in the end, neither of them will get to stay in it. They will have to sell it and split the equity.
4) Generally speaking, a home purchased after the marriage will be split equally, no matter how much of an imbalance there was in the down payments provided.
5) I would stay out of it, if I was you. It's gonna be messy.

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  • If its 50/50 custody with similar incomes who pays?

    Likely a wash. Courts generally use a set off formula. Exa if Mom would pay $100/mo to dad based on her income per the guidelines if dad had full custody and Dad would pay $120 in a reversed situation, the set off would see dad pay $20/mo to mom. Where its very close, parties usually leave exchange $0. Child support amounts are ultimately at the judge's discretion though, but they generally accept legit separation agreements when finalizing the divorce.
  • If both want to stay in the house, who leaves?

    Where there is no agreement, one party makes a motion for possession. This is usually a challenge to get short of allegations of violence where it is a safety issue. There is a trend in case law requiring the person staying to pay rent or pay the mortgage value, since the person leaving will likely acquire added costs to live.

    If one person wants the house, they need to agree on the buyout price. An appraisal may be necessary to break a deadlock. This can be set off against other matrimonial assets (i.e., you get the RRSPs, I get the house etc.).
  • Mother used 40K saved before the marriage to purchase the house, house was purchased after they were married.

    Its a question of law whether this is a matrimonial asset. It is likely presumed to be a matrimonial asset under most legislation. There may be evidence from the relationship whereby the parties acted as if it were not a matrimonial asset. This is where you get specific legal advice as YMMV.
  • Cannot come to an agreement on the amount the person would need to pay the other to buy them out of the house (only $40k in equity in the home)

    Again, this is where you need an appraisal. If they cannot agree, they will pay more than $40k equity for counsel and no guarantee of outcome with the judge. Most people split the difference here.
  • Both low income earners but husband does make more

    They cannot afford representation to trial. They should consider mediating this via counsel.
  • Agreement was husband watches kids in the AM, mother in the PM.

    Custody and access depend on the situation of each family. Work, schedule living arrangements etc. determine what is possible. I think an AM/PM would be a challenge. Most people got 3 on 3 off or week to week but YMMV. The sky is the limit here.
  • Husband won't leave the house, feels the mother and the kids should leave.

    He has a right to half the house. The mother's only choice is to make a motion for possession absent violence. If there is violence, the police should be called.
  • Documented proof the husband doesn't actually want 50/50 custody, but belief is maintaining the claim to help better the position of keeping the house and not having to pay.

    What does it matter? Strategy is fair play here. Men often are successful using custody against women for advantage, which is wrong, but its the way it goes. There is no entitlement to 50/50 either, but YMMV.
Deal Fanatic
Jul 4, 2004
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Sounds like these two can't afford to divorce. Might have to live together longer, save up, and then call it quits.
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Dec 12, 2007
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saint john
Frankie3s wrote:
Jun 10th, 2019 6:33 pm
Sounds like these two can't afford to divorce. Might have to live together longer, save up, and then call it quits.
Agree. Nothing is free, even separation isn't free either.
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adblink182 wrote:
Jun 10th, 2019 2:49 pm
My sister in law and brother in law are separating. They have been married for 3 years,
Your sister in law and your brother in law have been married for 3 years ???? Something doesn't make sense or it's poligamy.
[OP]
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Jul 30, 2005
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iamthebest wrote:
Jun 12th, 2019 12:43 am

Your sister in law and your brother in law have been married for 3 years ???? Something doesn't make sense or it's poligamy.
My wife's sister and my wife's sister's husband?

I suppose he technically isn't a brother in law but who cares everyone got the point.
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Jan 15, 2017
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Both partners need to get a lawyer ASAP. There are many legal issues at play here and they need legal advice. They also need to be aware that decisions made in separation agreements often form the corner stone of future divorce proceedings, so any decisions made now can have future impacts.

Child issues and assets/liability issues need to decided separately. Remember, decisions need to be made about pensions and all assets that were accumulated during the marriage.

As mentioned above, custody and living arrangements are two distinct issues with the children. In general, the courts will want shared custody. Child support will generally be based on where the children reside the most. Two weeks with Mom and then two weeks with Dad can be challenging for children, and it requires that both parents maintain homes that can accommodate the arrangement (close to schools and play mates, for instance).

If they cannot decide who keeps the home, the home can be ordered sold and then each moves on to other residences. In general, the value of the payout is the agreed market value, less any selling costs and less any outstanding mortgages. That $40,000 equity will disappear quickly. Keep in mind that the person staying MUST be eligible to carry the full cost of the home for mortgage qualification purposes. As both are lower income earners, it is doubtful that this is possible. Yet another indication of why seeking legal advice is preferred as it seems they are both arguing over an option that may not be available to either.
Deal Fanatic
Jul 4, 2004
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This all sounds like something on TLC. How the husband thinks he can kick her and the kids out, yet continue to live in a house that he can't afford would make for some damn good TV.

Maybe they should try and get on Dr. Phil first?
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Nov 8, 2017
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Hopefully the divorce is cheaper the marriage

What a waste of $

Look @ all the fun stuff that could have been had if that $ wasn't thrown away
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Dec 15, 2015
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OAFM or apply through legal aid to get a lawyer/mediator.
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For starters, they can probably both get 1 free hour of legal advice. For low income but not qualified for legal aid, they can try this: https://www.justicenet.ca -- not cheap, but less costly than a lower.

As for home: since it was purchased AFTER the marriage, its value needs to be split evenly. In terms of 50/50 split, who pays, court calculates as what one spouse pays to the other MINUS what the other would have to pay, with the higher income earner paying more. In terms of the husband wanting the mother and KIDS, that won't happen. That makes it seem that the kids will naturally be sleeping in the same house as the mom otherwise, why would the kids be leaving? Since that is the case, most likely the husband will be told to leave the house, since that is the best interesting of the children. Your sister in law needs to have that documented proof as evidence for the court.
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