Not gonna argue with that. 
We have a template for a separation agreement that we’re going to take a stab at and have a lawyer notarize; is that the right term?
We’re both comfortable (for now) doing this and using the same lawyer. We don’t hate one another; we just can’t be married.
A real estate agent was over today to assess the house. We need the roof done and about maybe $500 to $1,000 in other stuff we can do ourselves. The bank has confirmed we can get the money.
So, away we go. We’re hoping to list the place by mid-January in hopes that it will sell by the spring. In the mean time she’s looking at options of moving out pending the sale. I may be alone in a 1700 square foot bungalow, hell 3400 with the semi-finished basement. That’s going to be weird.
Make sure that you’re using a Canadian template. Generally speaking, Canadian separation agreements do not require notarization (and most, I’d guess, Canadian lawyers would refuse to notarize such a document). But (and this is a big BUT) Canadian separation agreements usually require certificates of independent legal advice for each party.
Note that banks, and similar institutions that hold any joint assets, typically will not honour a separation agreement if it bears a notary seal and nothing else. But they will pay attention to certificates of independent legal advice. This can involve as little as a half-hour of a lawyer’s time, during which he or she explains to you exactly what your proposed agreement means for you; and this half-hour could even be the “first thirty minutes are free” deal that many lawyers offer. In fact, the Law Society of Upper Canada offers a referral service, where you can obtain up to 30 minutes of a lawyer’s time at no charge.
Of course, I’m speaking from an Alberta perspective, and assuming that Ontario is similar. It may not be. Your best bet is to contact the LSUC, and get a referral for each of you, in order to discuss your proposed agreement. If everything is fine by you and your wife, your respective lawyers will provide you each with a certificate of independent legal advice.
Can I protect my pension, just for me? She has a public service pension too, and I’m thinking “you get yours, and I get mine.”
Doable?
Negotiable. Remember that, generally speaking, everything that you accumulated during the marriage is half hers; and everything she accumulated during the marriage is half yours. This includes pensions.
Now, if you want to protect your pension, you can; but you have to be prepared to give her a set-off (or she gives you one). For example, during the marriage you put aside $20K in your pension, while she put aside $30K in hers. Total pension accumulation for the both of you is $50K. Thus, you each get $25K from your respective pensions. Or, to put it another way, she owes you $5K.
But pensions aren’t the only assets that you have accumulated. Consider the above example, and now ask, do you have a car? Who bought it, and under whose name is it registered? If she bought the car and it is in her name (for example), and it is worth a Blue Book value of $5K, and she agrees to let you have the car, that sets off perfectly. But if it is worth, say, $8K, then you would owe her $3K if you got the car in the settlement.
Typically, we add up the assets accumulated during the marriage (this includes pensions), and the liabilities (i.e. debts), subtract one from the other, and split the difference. Obviously, there are some things that you do not wish to liquidate at present (as, perhaps, a car, a Picasso, or a first edition of Ian Fleming’s “From Russia With Love”), but you can assign a dollar value to them. So, you might agree upon a deal of some sort (“You can have the Picasso print which is worth $X; I don’t care about that; as long as I get the car and the first edition of Ian Fleming’s ‘To Russia With Love,’ which together are also worth $X”).
In short, your pension (at least, that which you accumulated during the marriage) is on the table; but you can offset that by negotiating other assets.
That is the normal coursed assuming you’re not filing for infidelity or well, here.
<snip> (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
Marginal note:Breakdown of marriage
(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Marginal note:Calculation of period of separation
(3) For the purposes of paragraph (2)(a),
(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.
<snip> Divorce Act
I guarantee you’ll find something to like about having extra space to yourself. Hang in there, and good luck with all the paperwork and stuff. I’m sure you’ll (eventually) be glad you went through with it.
makes clucking noises, fixes some soup and a small sandwich for Leaffan
I want this to be done soon. I wonder if I can just buy the house myself, and give her 50% of the equity. I’m sure this is possible. My personal income (before taxes) is about 30% of the cost of the house.
Is this a reasonable approach?
I think the danger in that would be that you could be accused of lowballing the price and not giving her as much as the house is worth, even if you get multiple assessments. A house on the free market can have a bidding war and get more than listing price.
This ain’t Calgary. There are no bidding wars. Houses in my part of the world take months and months and months to sell. Neighbours place few doors down has been on the market for 3 months now.
Alrighty then - I’d say run it by your lawyer, and if she says go, and your wife signs off on it, it does sound like a good solution.
Do you think your wife would be the kind of person to be very resentful and say that you took her house away, even if you gave her fair market value and she signed off on it?
CatWhisper’s comment highlights the need for independent legal advice. You don’t want to take a major step and risk that it will come undone later. Independent legal advice , each spouse speaking to their own lawyer, helps to ensure that a transaction will stand up.
Not intended as legal advice from me, of course - just to flag why lawyers strongly advise that each party in a divorce gets independent legal advice.
Discussed all of this today, and she will be contacting the bank tomorrow to see if I can buy her out. We’re both discussing this rationally. She doesn’t want to nickle and dime me, and vice versa.
She does have an expectation that I pay every cent towards child support and alimony. Since this is pretty much mandated by law I have no recourse, nor do I want to short-sheet my own children.
I did find it strange though that I’ll need to pay alimony. Sure, she makes a lower wage than I, but isn’t $1,372 a month in child support going to make up for that?
Anyway, we talked about house items too: I said take whatever you want. She was surprised by this, and I said, “you really think I’m going to care about a couch, or TV, or dining room table? Take whatever you want. I don’t care.”
Still trying to be pragmatic. It would be really nice if I could buy her out and be on my own again. I’m looking at women in the grocery stores differently lately. At least I did today.
When my friend and her husband split, he bought her out of her part of the house by giving her half the equity based on current market value. It worked out well for both of them as he liked the house and she didn’t really care.
Good luck! Hope it works out.
Uh, make sure that even if you buy her out, you can’t be held liable by the bank if she fails to pay the mortgage. And double-check that alimony thing… I thought it’s not all that common these days unless the woman hasn’t worked in years, etc. I have to add to the recommendations of separate lawyers, else you might find yourself agreeing to all sorts of not-legally-required/done ways of fucking yourself over.
There should be a set-off of spousal support by child support such that the individual net disposable income ratio (what’s left for each party after adjustments for child support, spousal support, and taxes/benefits – note that child support is not taxable/deductible whereas periodic spousal support should be taxable/deductible) is in the range of your 60-54% to her 40-46%.
If he buys her out, wouldn’t he be the only one responsible for the mortgage? She would not longer be on the deed or the mortgage.
Er, sorry - she buys him out. And they need to make sure that both the deed and mortgage are in her name only. If she just gives him half the value of the house, he is still on the hook regarding the mortgage.
Adding to the chorus of people urging you to get your own lawyer. A good friend of mine–a lawyer, albeit not a family lawyer–and her husband went the divorce mediator route both because they felt they could be amicable and because they didn’t want to spend money on lawyers. The divorce was finalized back in August and already the wheels are falling off the agreement due to their inability to sell the marital home at the price they wanted. This has caused a host of other issues to surface that both of them apparently regret agreeing to, so it is likely they will be back in court arguing over a divorce agreement that’s only a few months old.
My friend told me a few of the things she agreed to–in large part because she was hoping to forestall him from seeking alimony–and I was surprised that anyone who was thinking clearly would have agreed to these things; i.e., living within a certain mile radius of each other. I can understand the same town or, for where they live, a contiguous town, but that restriction seemed overly strict to me and I would think a lawyer would have counseled against that. A small example of how DIY divorces aren’t necessarily a good thing even if they save you money on the front end.
I never understood the reasoning behind alimony either. I mean is the relationship over or not ? To me it’s a statement saying I want out of every aspect of the relationship except for the money part we shared, you still owe it to me to share your wealth. I thought the person wanted out ? Sounds like modern feminism to me: I don’t want this, don’t want that, fuck that you keep that, but I definitely want some of that.
So would you ever marry again Leaffan ?