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Separation Agreements
I have been separated for just over 2yrs. I was coerced into signing a separation agreement which I have since had described by a lawyer as being objectively unfair. I am paying support for two boys. I am in dispute of the amount I pay in spousal support. This separation agreement is filed in B.C. Supreme Court. I expect to be going to work on contract shortly. If I stop paying the spousal amount will my ex-wife have to go via Supreme Court in order to have this thing enforced? The amount I intend to stop paying is $500 per month out of $1,200 ($1,200 is 40% of my take-home pay) of what I currently pay. I am have incurred a huge credit card debt load largely owing to the terms of this agreement. My debt load increases by about $400 each month. I have since remarried and have 2 other children besides my own to look after and my ex-wife has gone to work full time since our separation. She got the bulk of the family assets (about 90%) when we split up. I also took all the family debt. The reason I signed the agreement was because she said she would hold up the sale of the home if I did not sign it. I made a mistake at the time and did not seek legal counsel. I am now headed for bankruptcy while she has a very secure job and a paid for home. The terms of our separation state that should any significant change occur in our situations the content of the agreement should be changed as well but she has refused every request by me to alter it and I cannot afford to fight this in supreme court. The spousal is supposed to end in a few years. As well, a lawyer has told me that if I take this to supreme court they will probably not even consider to alter this because it is to small an amount of money. Can you tell me what other options I might have? Also if I outright stop paying her spousal and they have no wage to garnish what do you think would happen? How long might it my ex to initiate action against me? (by D of Kitimat, BC) You're in a pickle for sure. There are a couple of different aspects to your question. Separation agreements are subject to some of the same principles of ordinary contract law. This means that someone who was coerced into signing an agreement, or did so under duress, would be able to sue for an order that the agreement be cancelled, or "rescinded." In such a law suit, the court would examine the circumstances when you negotiated and signed the agreement and, if the court found it was obviously unfair and that you were under a lot of pressure when you signed it, possibly set the agreement aside. Of course, two years have gone by since you signed the agreement, and that does put a different complexion on things, because the court would probably want to know why it is that you waited so long before bringing your complaint. As far as the property aspect of your agreement is concerned, it's likely too late to do much about that. You can do something about the spousal support you're required to pay, however. What you've got is a bundle of unfairness arguments. Normally, to seek a change in support you'd have to show that there has been a "material change in circumstances" for either yourself or your ex-wife before the court would make an order differing from the agreement. In this case, you'd likely be approaching the problem from the unfairness angle. Even if there were no "material change" (for which, by the way, your indebtedness might qualify), you would essentially be arguing that the agreement is grossly unfair, and perhaps also that you entered into the agreement under some sort of duress. You certainly can claim a change in circumstances with your new family to support! Either way, you've been provding your wife with a fairly high level of support, proportionate to your income and means, and you're going deeper and deeper into debt to do it. Okay, so what are your options?
The worst thing you can do now is to make any changes to the status quo. Don't quit your job and don't stop sending the cheques, at least not without plainly discussing things with your ex-wife first. If you quit your job and your ex-wife can prove you quit your job to avoid paying support, the court will NOT be sympathetic to you! One last point on this issue: don't worry too much about what the agreement says. The court's authority trumps that of the agreement, and you have the right to challenge the agreement in court no matter what it says. You've asked a couple of other questions too. Amount of support: I cannot give you an answer about how much support the court would order without a lot more information from you. In short, however, the amount ordered will rest on two factors, her needs and your ability to pay. How long will it take her to sue you: She can do it tomorrow. She can do it if you default and she can do it even if you don't, but in that case only if she wants to increase or decrease the amount you have to pay. The steps are straightfoward. She drafts up a Writ of Summons and Statement of Claim and files them in court. Once she serves them on you, it's done. You'll have seven days to file your Appearance and another 14 to file your Statement of Defence and Counterclaim. The "small" amount: It doesn't strike me that the amount of support you're paying is small. It is plainly above your means if you're going into debt to do this. Garnishment: Your ex won't be doing this, FMEP will. They'll send you letters, once your ex has enrolled in the program, to see if you'll pay voluntarily. If you won't, then they'll start collection proceedings. That'll take a couple of months. Click here to go to the top of this page. My husband and I entered into a legal seperation agreement earlier this year. Since then we have lived together off and on most of the time. We are planning to continue our marriage. What is the proper procedures to take to void our original agreement? (by J of Cyberspace, BC) The easiest way to "void" your separation agreement is to — literally — rip up all copies of the separation agreement. If you both agree that the agreement should be set aside, that will do it. If he wishes to enforce the agreement in the future, he will have to produce a copy of the agreement and try to explain why the agreement should still be valid although the two of you agreed to destroy all the copies of it. Now, if you really feel like spending money on this, you can draft a further agreement that says, and one paragraph will do it, that "the separation agreement executed on XX between XX and XX is, as a result of their reconciliation and mutual intent to continue living as husband and wife, hereby void and of no further effect." That's it. I suppose that you won't need a lawyer to do this for you, actually. As long as it's clear who this new agreement is between and each of your signatures are properly dated and witnessed, that should be it. As an aside, given the past turmoil in your relationship, you may wish to consider drafting a marriage agreement which contains the sort of terms you put into your separation agreement. This may help avoid future unpleasantness should your reconciliation not pan out as expected. Click here to go to the top of this page. I want a divorce but my spouse will not sign the divorce agreement. We have been separated for a year now, but he will still not sign the divorce agreement. How do I make him sign or is this even possible to make him sign? Is there a time frame in which he has to legally sign this divorce aggrement? Can I do anything if he still refuses to sign? (by M of Nanaimo, BC) Unfortunately, you can't make anyone sign a divorce agreement, by which I assume you mean a "separation agreement." No one can be compelled to sign any sort of family agreement. Thankfully, if you really want to get divorced, you don't need his approval, permission or signature. You get the kit for this from a company called Self-Counsel Press. The kit's available almost everywhere except for gas stations, London Drugs, Staples, Chapters, etc. Now, if it is the case that you have a separation agreement (and agreement dealing with things like children, support and assets and so forth), while you can't compel him to sign it if he doesn't want to, if he participated in the negotiation of the agreement, you can sue him for an order on the terms of the agreement, and try to use the agreement as evidence of his consent to those terms. Click here to go to the top of this page. I'm currently dating a woman, for about a year, that has a separation agreement with her husband. They live together, she lives upstates and he lives downstairs. Can you date someone under a separation agreement? (by J of New York, NY, USA) Firstly, you must understand that I know little, if anything, about the laws of New York state. Nevertheless, under the laws of British Columbia, the answer to your question is yes. It might be a trifle imprudent if they're still in the same home, but that's your call — it's certainly not a legal issue. Click here to go to the top of this page. My husband and I are separating, and we don't have any children or property. Do we still need to sign a separation agreement that could be used as an official document? (by T of Burnaby, BC) There's no magic to a separation agreement, and there's certainly no "official document" required for you to separate. You just end the relationship and you're separated. Separation agreements can be very handy if a couple need to resolve issues relating to children and property. While you and your husband don't have to deal with those problems, you may still want to complete an agreement to deal with spousal support. In essence, the one meaningful clause of your agreement would say something to the effect that you each give up any right you might have to claim spousal suppport from the other. Unless there are some other issues lurking in the weeds that you haven't mentioned, like dealing with family debts, that would seem to be about it. Click here to go to the top of this page. Can you tell me the difference between the separation agreement and the divorce agreement? (by C of Inuvik, NT) Firstly, there isn't such a thing as a "divorce agreement." A separation agreement is used to finalize matters between a couple after their marriage breaks down, including such things as the care and control of the children, spousal support, the division of the family's assets and so forth. The one thing a separation agreement can't do is divorce a couple. For that, an action must be brought in the Supreme Court. Sometimes a couple, usually after an action has been brought, decide to settle things, and instead of putting their agreement in the form of a separation agreement, they will do so by an order that they both agree the court should make, called a consent order. That will usually include an order for the parties' divorce. That's the only kind of "divorce agreement" available. Click here to go to the top of this page. My husband and I legally separated last. We have decided to reconcile and I would like to know how and when is the legal separation voided? Do we have to live together for a certain time for the agreement to be automatically voided? (by D of Ottawa, ON) The answer to your question might be found in your separation agreement. Sometimes the agreements I prepare have a clause about what will happen with the agreement if the parties reconcile, and the effect of reconciliation can depend on the parties. Sometimes my agreements provide that "in the event the parties reconcile and cohabit with one another for a period of at least 90 days, this agreement shall be deemed to be a marriage agreement and shall continue in effect." Sometimes the agreement simply dissolves if the parties live together for a certain period of time. You don't need to apply to cancel the agreement. You and your husband can simply agree to end the agreement, and you can draw up another agreement cancelling the previous agreement, or simply rip up all the copies of the agreement. In other words, first have a look at the agreement and see what it says about reconciliation. If it's silent on that point, and you want the agreement to come to an end, you and your husband must agree to terminate the agreement. If you don't there's no "automatic" cancellation or voiding of the agreement. I should note that agreements like yours will be governed by your provincial laws, if there happens in Ontario to be a rule about what happens to separation agreements when a couple reconciles. What I've told you is good in BC, and is probably good in Ontario, but since I don't know much about Ontario law, you probably ought to check with a lawyer in your neighbourhood. Click here to go to the top of this page. The divorce between my former wife and myself was finalized in May 2001. There was a preexisting seperation agreement. Is the seperation agreement in anyway legally binding after the divorce was finalized? (by E of Delta, BC) The separation agreement you and your wife executed is just as binding now as when you signed it. The only thing that would change how binding the agreement is would be a term of the divorce order which said something to the contrary of the separation agreement. If the divorce order just said "you are divorced," and there are no other terms of the order, your separation agreement is fine. Click here to go to the top of this page. I received a proposed seperation agreement from my husband's lawyer claiming he left [on a specific date], but in fact he's been coming back since then and has never told me that he was intentionally away - in fact, quite the opposite. ditto to the 4 kids. He told me that date was based on the lawyer asking him when he moved his things out. Doesn't she have an obligation to ask him when he moved his things back in? Can I ignore this proposed 'agreement'? Do I not have a year before I have to deal with this? In the meanwhile, does he have any obligation to look after his kids? (by A of Vancouver, BC) Firstly, you do NOT have to sign the agreement prepared by your husband's lawyer. Agreements are precisely that: creatures born of the consent of the parties involved. If you don't agree, you don't have to sign it. By the same token, nothing is preventing you from expressing your objections to the parts of the agreement you disagree with, nor your preferred arrangements. You do not have any specific time frame within which you must deal with the agreement. Your husband has plainly retained counsel to get the ball rolling on a final, legal conclusion to the issues that are outstanding between the two of you. It would be worth your while, however, to respond to the lawyer with some alacrity. You need to open a dialogue, so that you can express your feelings about the proposes agreement and identify the parts you agree with and those you don’t. Remember that the only alternative to a negotiated settlement is litigation. I suspect that you, like most people, would want to avoid that. If you don't reply to the lawyer you risk her commencing an action without further notice. Go ahead, open the dialogue. The date of separation was probably picked rather arbitrarily by the lawyer. Remember that she's only heard your husband's side of things. She probably just asked him "when did you move out?" and may not have explored any attempts at reconciliation in great depth. You also asked whether your husband has any obligation to look after your children. Well, yes, he does. It's hard to impose that sort of obligation; what you're really talking about is access. What sort of access do you want him to have to your children? Tell this to his lawyer. When the children are with him during his access periods, he will be solely responsible for looking after them. Click here to go to the top of this page. Do you have to have a lawyer to write a separation agreement? My parents have been separated for over nine years and my mother has to turn in some paper work to receive a loan but it ask for a copy of her separtation agreement? What does she need to do? My parents live in Georgia. (by O of Ozark, AL, USA) While I don't know a thing about the laws of Alabama or Georgia, I can tell you that in all likelihood you don't need to be a lawyer to draft a binding contract, which is what a separation agreement is. It's always best to have a lawyer take care of it, to make sure that the agreement is legal, binding and enforceable, but a lay person can still draft an agreement that's legal, binding and enforceable. I don't know why a lender would need a separation agreement to give a loan. If it's just your mom who wants the loan and it's only going to be in her name, there shouldn't be a need for a separation agreement, unless the collateral your mom is putting up is owned jointly with your dad. Beyond that I can't answer your question. I practice law in British Columbia, Canada, and know nothing at all about the laws of the various US states. Your mom should probably speak to a lawyer in Georgia though. Click here to go to the top of this page. I was living with someone for less than two years in a marriage-like relationship. While we were together, we purchased a condo. Upon separation, we decided that I would buy him out of the condo. I drew up a separation agreement (from a kit in the library), had him read it to make sure he was okay with the terms (and made changes where he requested) and we both signed 2 copies, and had them witnessed by a third party. We never had the agreement notarized, or otherwise, but we each hold a copy. The agreement stated the amount of money I would owe him for the buyout, including the amount I would pay him up front and the least amount I would pay him monthly for the remainder (as well as the start date for the "interest-free" loan). I have been paying him more than the least amount in order to pay him off as quickly as possible. Since then, he has threatened to take action to sue me, saying he got ripped off with the original buyout deal (which he signed off on). He says he's talked to a lawyer that has said what I've done is not legally enforceable. However, since we separated, I've had the mortgage and the land title transferred into my name (even paid the property transfer tax), all done by a notary and signed by my ex. (by C of Vancouver, BC) From what you've said, your separation agreement is "legal." What "legal" really means is that the agreement can be enforced by the courts as a valid and binding contract. You have got all the formal requirements done correctly: it's in writing and you each signed it in front of a witness. As long as you didn't force him into signing the agreement and didn't lie about your assets and whatnot, your agreement is binding and enforceable. The position you're in right now is that if he won't comply with the agreement, you'll have to go to court to get an order compelling him to comply with it. Ironically, litigation is exactly what he's threatening. Fine, let him go to court. You'll be able to counter-sue for an order forcing him to do what he promised, and he'll try to make his pitch that the argument isn't binding. Remember that the court will give a significant weight to agreements that people voluntarily enter into; the generally court will try to uphold agreements where it can. One last thing, be very wary whenever he says "I talked to a lawyer and the lawyer said..." or "the law says that..." One thing I tell 95% of my clients in my private practice is that whenever the ex makes a statement about the law like that, it's guaranteed to be at least 50% bullshit. He may not even have seen a lawyer. You, on the other, probably should see a lawyer. You don't have to hire him or her, but it'll be well worth your while to pay for a half-hour consult to at least get the lawyer's take on your agreement and explain your options to you. Click here to go to the top of the page. My husband and I are starting to negotiate a separation agreement, and we don't know how to handle the share options we are entitled to exercise with his employer. We have not purchased them yet. Do we get a loan to purchase them all now or do we use the proceeds from the matrimonial home to purchase the shares? It is approximately [number] shares, and could cost about $[cost] to purchase them all. (by A of Port Coquitlam, BC) That's a very complex problem you've got, and, as a result, I'm going to give you a bit of information and suggest that you speak to a good family law lawyer for some proper legal advice to answer your question. First, options are funny things. They can be absolutely worthless (Nortel, junior mining stocks, etc) or they can be diamonds (Microsoft, start-up tech companies, etc). Most often, you never know how the options are going to turn out. Because of that, I'd be very cautious in chosing to get a loan to exercise them. You wouldn't want to go into debt only to find out you've bought a pig in a poke. Where an option has been cruising well below the exercise price for a long while and there's no immediate prospect for improvement, I generally consider them to be worthless, and don't look at them too closely in dividing assets. If it's the case that the stock is performing well above the option price, then obviously the options have value and must be considered in the division of family assets. But if you have to incur debt to excerise the options, I'd look very closely at the company first. You're making a huge gamble: will the stock continue to perform well? If you smell trouble and think you might want to dump the stock, will the capital gains tax worsen your debt load? Finally, how will you consider the debt in the division of assets? Do you each take out a loan for $[half of cost]? Can you sell a family asset, like the family home, to exercise the options in a debt-neutral manner? At the end of the day you need some good legal advice. Too much depends on how the options are held, whether options are transferrable, what the company's prospects are, capital gains issues, and so forth. You need very specialized legal advice; make sure you get a family law lawyer who has a track record of dealing with complex asset cases. Click here to go to the top of the page. My ex has sole custody. We have joint guardianship. The agreement reads: "X and X shall share joint guardianship of the child with guardianship including the following rights..." on the Master Joyce Model. Does the wording "with guardianship including" mean I have only the Master Joyce clause rights or mean all rights as a guardian as well as the Master Joyce rights? Also, if I have all rights plus the Master Joyce Model whats are my full rights as a joint guardian? I want to attend my son's medical appointments etc. Do I have the right to do this? (by J of Duncan, BC) The Master Joyce Model of joint guardianship attempts to spell out what each parent's rights and obligations are with respect to raising the children. If your order is on the standard Master Joyce terms, the terms pretty much spell out ALL of what "joint guardianship" entails, so whether the word "including" is in there or not shouldn't matter. On the other hand, the word "including" does imply that if there's any aspect of guardianship not addressed in the Master Joyce model, you share that too. What are your full rights as a joint guardian? That's a broad question, and hard to answer. In a nutshell, it'd be the right to play a full and meaningful role in raising your son and in participating in decision-making involving all aspects of the child's life, including religious instruction, social and moral education, schooling, health care, dental care, and psychiatric care. I can see no reason at all why you can't attend you son's medical appointment, unless you and his mother are in a situation of high conflict or there is a restraining order restricting your contact with her, and she intends to attend those appointment as well. Click here to go to the top of the page. My wife and I are separated, she has seen a lawyer recently, on both of our agreement and mutual discussion, but now I am having second thoughts about it all, I don't want a divorce, neither does she, I don't even want a separation agreement. Do I have to sign it? Can she make me sign it any way if I refuse? I just don't want to, I know that there is a very strong chance for reconciliation, it will just take time, more than the "standard" one year. We have had our differences, everyone does. Now we know where to work on them, so I don't see the point of signing a document that will become void later on down the road. Any pointers? (by B of Abbostsford, BC) No, you don't have to sign the agreement. The agreement isn't final until and unless you do, and there is nothing at all which is forcing you to sign it. If you think that the two of you are going to reconcile, don't sign it and get to work on that aspect of your life! Click here to go to the top of the page. My wife has left me after 20 yrs. for another man. She was the main bread winner by choice, I worked part-time and was a "mr. mom". We have a 16 yr old son and 21 yr old daughter. My son is a drug addict and is in rehab now; my wife couldn't deal with it and left for the man she apparently had been seeing for the past 4 yrs. I want a legal serperation but she refuses to talk about it. I will give her anything if she will let me and the kids have the house. There is a small debt attached to it. She now is indicating that she wants a big chunk of what the house is worth, and I since found out that while me and kids are living on next to nothing she won [amount] in a bingo lottery. She throws a hundred or two hundred our way when she feels like it. I am trying to find full time employment but am currently undergoing tests to find out if I have cancer. I want to know if what she has done will effect the division of our assets. (by G of Richmond, BC) As a general rule, someone's conduct during the marriage does not play a role in how assets are divided or whether spousal support is payable. Her conduct will be relevant to the arrangements for the care and control of your son, however, since she shows a pretty surprising disinterest in his welfare. Now, you should know that you are probably entitled to receive child support from her as well as spousal support. Spousal support isn't just for wives. As well, if you have a greater need to become financially independent because of, for example, your time out of the work force during your marriage and your possible illness, a greater share of the family assets could go to you. Finally, you can lead a horse to water but you can't make it drink. You cannot force her to execute a separation agreement with you. If she refuses to bargain with you in good faith, you may have no choice but to start an action in the Supreme Court. Sometimes that is enough to lead someone back to the bargaining table. Click here to go to the top of the page. I need a bit of guidance on how to manage our separation. My wife (Canadian) and I (German) got married in Ontario in 1985 and we lived in Vancouver for many years. We still have a house here. In 2001, I took a job in Nigeria and the whole family (we have 3 children) moved to Lagos. Last year, we moved on to Nairobi in Kenya. At the beginning of this year, my wife and I agreed to separate amicably. She wants to stay in Nairobi (so our oldest child can finish school there) while I still have a residence in Nigeria. The questions now are:
Many thanks. (by R of Vancouver, BC) 1) Yes, the separation agreement can be based on BC law, so long as you both agree to it. It seems to me that Canada is where you lived most of your married life, although an argument could be made that Nigerian law should apply since that's where your child continues to live. The family does, however, have significant ties to British Columbia and if the applicable law is disputed, you have at least a decent argument that it should be BC law. In any event, most separation agreements have a clause spelling out which laws will apply to the interpretation and enforcement of the agreement, you just have to agree that the laws be those of BC. 2) You have to wait until you have been separated for one year before you can seek a divorce. In addition, you will have to have lived in BC, or any other Canadian province, for one whole year before you can ask for the divorce. Click here to go to the top of the page. Does a commonlaw relationship affect the termination of a seperation agreement like a remarriage? If so, how many years after an ex enters into a commonlaw relationship will a speration agreement end? (by S of Dartmouth, NS) I'm going to assume that the case law on this subject is roughly similar in Nova Scotia to British Columbia law. There's no rule that a common-law relationship or remarriage operates to terminate a separation agreement, and I assume the part of the agreement you want to end is spousal support. In the separation agreements I draft, where there's a probability that support will be paid for an indefinite period of time, I always throw in a clause to the effect that support will terminate in the event that the recipient lives with another person in a married or marriage-like relationship for a period of more than, say, three months. If that clause isn't in there, there's no automatic termination of support. On the bright side, there's nothing stopping you from applying to court to cancel or reduce your spousal support obligation on the grounds that the support is no longer needed as your ex is now being supported by someone else. There is no guarantee at all that you'll be successful, but it might be worth your while. I strongly suggest that you meet with a family law lawyer in Dartmouth to get a proper answer to your question from a Nova Scotia point of view. You don't have to hire the lawyer for anything more than that, but it'd be well worth your money to at least get his or her assessment of your situation and options. Click here to go to the top of the page. I would like to ensure that a complete agreement is drawn up, specifying the following: a) responsibilities of each parent to guarantee access to the other (who pays for bus rides, etc); b) access amounts; c) child support, tax benefits, etc; d) removal of maintenance from me as payor, and from FMEP. Does any such form or kit exist? (by M of Coquitlam, BC) Yes there is a DIY separation agreement kit. It's published by Self-Counsel Press and you can find it at Chapters and Staples in the do-your-own will section. The kit has a form on disc and you can modify it as you need. The Self-Counsel Press agreement is a little light from a lawyer's perspective, but they are routinely upheld in court, so long as the terms of the agreement are clear. You can certainly put into the agreement everything that you need, it's just a matter of making sure that your meaning is plain and obvious. Don't use flowery language and keep the terms of the agreement as simple as possible: would a complete stranger understand what the agreement means? Now, the one thing I doubt you could put into the agreement — by which I mean the one thing you could put into the agreement but the courts wouldn't enforce — is the term relating to her un-enrolling from FMEP. I doubt that you could contract out of a statutory right like enrolling with FMEP. Click here to go to the top of this page. Site Navigation
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