DIVORCE TIPS
Want an answer
to a question about your separation or divorce? I'm not a lawyer,
but I do have some good common sense, from having been there.
Email your questions to me at
eric_dormer@DivorceSupportServices.ca.
Answers are kept general and anonymous
Legal Disclaimer:
Note that the author is not a lawyer and
any information provided is just helpful knowledge from someone
who has been there. You should not interpret it as legal advice. The
author is not responsible for adverse outcomes related to acting upon
any information offered. Consult a lawyer when
necessary.
All tips are (c) 2008, Eric Dormer.
DIVORCE TIP 002
DIvorce Tip #002:
Don't Leave the Matrimonial
Home
08-Mar-05
Hi Divorce Tip Guy,
My wife just told me she wants me to move out. We have a 10 month old child. Now what?
----------------------------------
The information contained below in
this tip is
Copyright (c) Eric Dormer, 2008.
Legal Disclaimer:
Note that I am not a lawyer and any information
provided is just helpful knowledge from someone who has been there.
You should not interpret it as legal advice. The
author is not responsible for adverse outcomes related to acting
upon any information offered. Consult a lawyer when necessary.
I'm sorry to hear that you just separated. If you want to tell me more about it I can perhaps help you, or at least guide you a bit on the first practical steps.
The information in your email is sketchy, so I will make a few assumptions. Even if my assumptions are wrong, some of the information below might be useful. I assume you want to retain joint custody and equal access to your child. I assume you are in Ontario. I assume your wife will want sole or joint custody and wants to be the primary parent. I assume she remains currently in the matrimonial home, with your child. I assume you have not been charged with spousal or child abuse.
Be aware that in a common-law relationship, there is no splitting of assets acquired during the marriage, anything registered in your name is yours, and anything registered in her name is hers. Usually this applies to houses and cars, since not much else is explicitly registered. Anything not explicitly registered in one name or the other usually ends up with whoever grabs it first, however as a man its in your interest to be very careful about splitting all such assets fairly and transparently. Note that if she gets it first, you will have a hard legal battle to get your share, and you probably never will (since the legal costs usually exceed the asset value), so you really do have to move first, to ensure a "fair" split.
In a legal marriage, the value of all assets acquired during the marriage is split equally. Great in theory, but in practice the value of most items is set very low by an appraiser if they are "used". You are usually better to actually have the asset. Also, assets have a habit of not being documented by the party that has them, so if you hold the asset, you can be dilligent with your disclosure.
The bottom line is that in both cases, common law, and legally married, holding the asset helps. Documenting any assets you dont dont plan to hold (even photographing all such assets, and writing down model numbers) is an excellent idea.
Note that your child is entitled to child support from both parents as necessary, independent if you were legally married or common law. Thus child support, custody, and access to your child are areas of frequent legal confict when ending common law relationships with children involved.
Regarding custody and support of your child, the key point is to avoid leaving the matrimonial home . If you are still there, try to stay there while avoiding conflict with your common law wife, unless she is making threats or allegations of abuse. While you are in the home, there are several practical things you should do.
Here are my standard tips, in order of occurance:
a) RECORD KEEPING
Get a journal (book, or computer text file) and take notes of all key dates and conversations, and events from the lead up to separation and onwards, on a daily basis. If you have phone conversations, make notes afterwards of what was said. This is very important if there was a verbal agreement by either party. Its also appropriate if you were threatened or verbally abused. Any agreements made verbally should be followed up within 24 hours by an email restating the conclusions of the verbal discussion that happened, and the agreement made. Indicate the time and mechanism of the conversation, such as "Jane, As agreed in our telephone call earlier today at 2 pm, you will deliver the keys to my Honda vehicle to me by February 28. You agreed to put them in my mailbox. Thankyou very much. Sincerely, John". In all verbal and written correspondence, avoid all emotion, focus simply on facts. Try to use exact dates (and even times when possible), and always use exact dollar amounts. The more precision, the more credible your notes are. Don't argue previous battles. Learn to document everything. Send a letter or email after every verbal conversation, keep a copy of your written correspondence. This includes instructions to banks and credit card companies.
b) DOCUMENTATION
Get originals or copies of all key documentation. This includes the record of birth and birth certificate for your child, OHIP card for your child, medical records for your child, daycare information and statements, current and historical bank statements, current and historical credit card statements, insurance statements, ownership papers for all your assets (car, home, etc.), lease or deed for your home or apartment. If it relates to your child, take the original and leave her the copy. If it relates to you, take the original and leave her nothing. If it relates to both of you, take the original and leave her a copy. If it relates to her, take a copy and leave her the original. Get copies of her income tax records for last few years, and take originals of all your income tax records. Get COPIES of any bank statements or credit card statements your common law wife has in her own name. (NOTE that you cannot take the originals if the tax return, card, or account is in her name, just take copies). Get your safety deposit box key if you have one.
c) SECURING ASSETS
Go to bank, close joint account. Open new account in ONLY your name. If you have good relations with your bank, you might consider staying there, but its better to move to a new bank if possible, such as leaving BMO and moving to TD. Note that its not enough to take all the money out of the chequeing account, you have to actually close it, ensuring that it is impossible to deposit a cheque to it. Transfer all funds to new account. IMMEDIATELY draft a cheque to your common law wife, for EXACTLY half the amount, numerically. Don't deduct any amounts for perceived inequitable savings or expenses or other factors. You can get to that later if necessary. If you have the only safety deposit box key, inform the bank that only you are now allowed access, specifically your common law wife is excluded. If she has a key or is recorded with the bank as being allowed access, then remove all contents from safety deposit box. Open a new one in a new bank. Cancel any joint credit cards where you have any responsibility to pay. Outstanding balances will still be owing, however no new purchases on those cards will be allowed.
c) ESTABLISHING CLEARLY THE END OF MARRIAGE
Write a letter IMMEDIATELY notifying your common law spouse that you have terminated the common law relationship, but you are staying in the matrimonial home with your child until you have child custody, access, and support resolved. Once these issues are resolved, one or both parents can arrange to move and decisions can be made on keeping or selling the home. Insist that she not remove the child from the matrimonial home, since changes to your childs life at this time are not her the better interest of the child. Invite your common law spouse to stay or leave as she chooses and offer her equal access to your child regardless of her residence pending agreement on outstanding issues. State your intended sleeping arrangements in the home pending resolution of outstanding issues such that conflict is minimized. In particular indicate what room she is welcome to sleep in, what room you will sleep in, and indicate that you have moved your personal effects from her sleeping area into your own. If possible move to another bedroom, not to the couch or basement, but if necessary move to basement or couch. State explicitly that sexual relations between the two of you are now ended. Notify her that from this date forward, she is not permitted to incur any expenses on accounts, credit cards, or lines of credit where you are in any way responsible for paying the amount. Indicate that you have closed all bank accounts and credit cards which are joint. Notify her that you have a cheque payable to her for exactly half the balance. Attach the cheque to the letter when you give it to her, and make NO conditions upon giving her this cheque. Include a copy of the last statement from the bank, showing the final balance, such that the cheque is exactly half that balance. Notify her that she is to return the car keys and ownership papers, and return the car to you (if it is registered in your name) and cease using it immediately. Notify her that she is prohibited from changing the locks on your home and you have no intention of locking her out either.
If an allegation against you of abuse is likely, that becomes much more tricky. If its not likely, then by all means, try to stay in the matrimonial home for now while you work out custody and support issues for your child.
If you have already left he matrimonial home, or been locked out or forced to leave (which is different from agreeing to leave after being asked), then its very important that you take a set of practical steps immediately. Any delay works against you a lot. I can tell you more about the practical steps in subsequent discussions, by phone or email.
Cheers
Eric.
------------------------------------------------
If you want help, please feel free to contact me.
Eric Dormer
eric_dormer@DivorceSupportServices.ca
Ottawa, Ontario
If you found this tip useful, or have additional
information, or a different view, PLEASE email me. I want to hear it.
Email me at eric_dormer@DivorceSupportServices.ca