Your Legal Options And Rights
When your wife leaves and plunges you into the depths of despair, you may not be thinking about your legal rights, let alone drafting a new 5 year plan. To the uninitiated, it may come as a surprise that the law makes no distinction between married and unmarried spouses with respect to rights upon separation. The rules that apply to married spouses also apply to spouses who live together but do not legally marry.
The only exception to this rule is with respect to rights to spousal support. "Spousal Support" is the term our Courts use to refer to a spouse’s right to receive monthly payments from their spouse. While married spouses can be entitled to spousal support, unmarried spouses may not always be entitled to spousal support. The reason is because of the way the "spousal support" laws and the "property division" laws are structured. In Ontario, both married and unmarried spouses fall under the same "property division" laws. These laws require spouses to divide equally all of their "family property". However, in Ontario, a spouse is only entitled to one form of support – either spousal support or an equal sharing of family property. They cannot have both. You may be wondering why spousal support is tied into family property sharing credits. The answer is that spousal support is intended to assist a spouse whose economic needs arise out of the breakdown of the relationship. If a spouse receives an equal share of an asset (i.e. house), then they would not also be entitled to spousal support.
However, an unmarried spouse holding on to title of a family asset may not be sufficient to constitute an entitlement to support. For instance, if Husband transfers his 25% interest in the family cottage to Wife and then both parties stay living together in the cottage freely as co-owners, many Courts have held that to be a waiver of Wife’s claim to be supported by Husband . If, however, Husband transfers his 25% interest in the cottage to Wife and then kicks her out, the terms of their relationship as ex-owners or how the family unit if functioning may be very relevant to Wife’s right to spousal support.
What is "relationship property" (assets like cars, houses, pensions, and bank accounts) if not family property subject to an equal sharing? The answer is that there is nothing inherently physically different or legally different between relationship property and family property. There is nothing that indicates that relationship property is less important than family property. However, there is simply no law to require that relationship property be divided equally.
What are the legal rights of a spouse if they divide the relationship property prior to the date they separate? Many Courts have held the spouse who did not receive 50% of the relationship property then has the right to claim one half of the value of the property transferred. So, if on the date of separation, Wife and Husband own a house worth $240,000, a $40,000 car and a $10,000 bank account shared equally between them, and 6 months prior Husband decided that he needed his name removed from the joint assets because they no longer get along, then this would amount to wife receiving $140,000 worth of relationship property and Husband receiving only $70,000. If Wife intended to keep these assets, she would have made a mistake. Her remedy, if valued at the date of separation, is to have Husband pay her $35,000 – half of the $70,000 difference between the relationship property.
When your spouse leaves, the law gives you as a spouse certain rights that may or may not be sufficient to cure the bitter feeling of loss. Remember, the law does not address the emotional aspect of separation. In an age where society is ordering more custom-made solutions to relationship breakdowns, the legal system continues to provide a one-size-fits-all approach.
Choosing a Divorce Attorney
The process of obtaining a divorce is a challenging, time-consuming endeavor. While some couples are able to work together to navigate the dissolution of their marriage, this is atypical. In most cases, husbands and wives spend a significant amount of time fighting over issues like child custody, alimony, child support, and dividing marital property. So how do you know when it’s time to reach out to a lawyer for help with your divorce? Here are three reasons to seek legal advice as soon as possible after your spouse makes the decision to leave the marriage. Most states have specific laws dictating how divorces are handled. By consulting with a divorce attorney early in the process, you can learn what your specific rights and responsibilities are according to state law. A divorce attorney can guide you through the process of legal separation, which may be your first step depending on state requirements. A legal separation is not the same as divorce, but it is often a necessary step if you and your spouse have minor children and have not lived apart long enough to obtain a divorce. Whether you have children or not, you need an experienced attorney on your side to ensure that you are protected throughout the process. With our assistance, your best interests will be the priority.
Pursuing Legal Separation Or Filing For Divorce
The first step in legally ending a marriage is to either file for legal separation or for divorce, known as "dissolution" in many states. Your decision here will be influenced by a few factors, which are not answered solely by law. Once you’ve considered the legal counsel and then momentarily rejected it as perhaps overly cautious, you must think about what you want.
If you are sure that you want to end the marriage and simply move on with your life, then filing for divorce is the right step. You’ll quickly learn that a legal separation doesn’t mean separation. Instead, you and your spouse must make all of the same decisions that are part of a divorce settlement, but it takes longer and is usually more expensive. While it may be less emotionally traumatic to get a legal separation at first and see how things go, it can be more frustrating than practical to sit and wait while your spouse and/or lawyer try to reverse the process at a later date.
On the other hand, legal separation sometimes makes sense when it’s a step to a divorce. While some couples reconcile fully after a short separation, others go through such a process for better planning of a divorce, especially where children are involved. It is possible to address issues such as custody, division of assets, and division of debts while you’re separated. A legal separation is a judicially recognized status in which the spouses remain married but follow the same types of orders (about custody, spousal support, and the like) that would apply to divorce. In a divorce, the relationship is dissolved and the parties are legally no longer husband and wife. On the plus side, for many families it is an appropriate stepping stone towards a divorce. In this case, a legal separation agreement is not final but is a means of keeping everyone safe while you work through your issues. It is important to note that your spouse can petition a court to get the case back on track even after a judge has approved a legal separation agreement. In fact, once the separation goes into effect, either spouse may seek a divorce from the separation.
Traditional reasons for separation are religious and financial. Even if you and your spouse believe you will eventually divorce, a period of formal separation may not allow you to claim tax advantages, thus costing you additional money. This is not usually as much of a factor for couples who have no children and can simply claim "married" or "single" as appropriate for various tax purposes. Some states have residency requirements that you must satisfy before you can file. Your lawyer can help determine whether you have met those requirements so that you don’t miss the window in which you would qualify.
Dealing With Child Custody or Support Issues
After your wife has left, it’s essential to consider the legal aspects of child custody and support. In most cases, this begins with filing for "legal separation," even if you plan to divorce later. This establishes the matter of custody and support while the couple is still married. If custody or support matters are not agreed upon now, you may end up being forced into a situation later where you will have to argue for your rights as a father in court while your wife is rush to a ruling against you, having already put down her opinions in writing.
Custody
While divorce can be emotionally devastating, your children’s well-being should be a priority. A divorce does not give you permission to undermine their relationship with your wife. The courts generally favor joint custody arrangements, but this isn’t always possible. Joint custody requires both parents to consider and agree on what they think is best for their children before each step into the unknown, either by writing it into a parenting plan or having a judge make the decision for them.
Support
Child and spousal support are generally decided as a single package, and the formula used to determine these payments is a bit complex. Your pay rate, the estimated time you have for alternative custody, the age of the child and the location of both parties are all factored into the final number. In most cases, the marital partner is responsible for child support until he or she remarries, while child support obligations remain into the child’s adulthood.
In California, you are required by law to carry health insurance for your child or provide proof of financial support. This includes costs associated with dental and vision care, and you are required to carry insurance until your child turns 19.
Protecting Your Accounts and Other Real Property
In the unfortunate event that you find yourself in the position of having your wife leave and perhaps even file for divorce, there are certain steps you should take immediately to protect your money and property. If you have not already done so, every effort should be made to catalog all assets and debts. This means everything from bank accounts, investments, pensions, etc. to credit card debt and loans. It is a crucial step in the process of dividing assets and debts during a separation or divorce.
Take some time to request current account statements from banks, credit cards, loans, and other financial institutions. If you manage these accounts online, print out and make copies of each of these statements so you have a record of their contents. At the same time, go through and make a list of all assets and liabilities that are owned individually or jointly with your wife. List the type of account , its date of opening, identifying number, and current amount.
In addition, assets acquired during marriage are generally considered marital property, while those acquired before marriage are usually separate. Debts acquired during the marriage are also considered joint debts. For this reason, it is important that both assets and debts be organized and easily identified as pre-marital if you want to protect them.
Finally, you should have a strong handle on all financial dealings together. Many times, spouses join accounts and/or credit cards, which should all be paid off immediately. In fact, you may even want to consider closing those jointly held accounts or, at the very least, separating your funds to avoid any further issues. When preparing for a divorce or separation, it is important to be as transparent and organized as possible.
Legal And Emotional Maneuvering
Managing Your Emotional and Legal Stress
Separation is a process, and like the grieving process, it’s not linear. Your first level of stress will likely be the initial departure of your wife from the marital home. This level will probably include shock, disbelief, anger, bargaining, depression, and acceptance. However, those stages are often not followed. Instead, the stages occur in a seemingly random order. Which means you can be truly devastated one day, relieved to be free of an oppressive relationship the next, and then all hell breaking loose the next.
Dealing with the emotional challenges posed by separation is why finding the right lawyer is so important. Most people with family members who have died say they wish they’d had more time to spend with their loved ones before they passed. If you’re separating from your spouse, you have all the time in the world to think out how you want to proceed, and no deadline to meet.
Almost every attorney handles at least a few divorce or child support cases each year. The lawyers at Brooke Law offer free consultations at any time, even on weekends, and are familiar with the process from both legal and emotional standpoints. That’s not to say that we’ll necessarily help you. Our consultations often result in referrals to other services your particular situation would benefit from.
The initial meeting is mostly about listening, but we cannot over-emphasize the importance of that. The key is to listen to the story of what has happened in your life and your mind, how it has gotten to this point, and why you might not want a lengthy delay in the process.
Preparing For Settlements And Negotiations
As the dust begins to settle from the initial shock of learning your wife has left you, you can sho experience a flood of emotions. However, the overwhelming nature of this response is not a good color on you; indeed, it could cost you a lot more than attorney’s fees in the end. The best way to deal with your wife leaving you is to be as coldly rational as possible where your finances and children are concerned. By preparing for negotiations carefully and purposefully, you can stand a much better chance of achieving the amicable separation you are looking for, and even prevent a child support case or dissolution of marriage proceeding from being filed against you.
The goal of preparing for divorce negotiation and settlement is to determine what you want out of the negotiations, how likely you are to get those things, and if the benefit of getting what you want outweighs its estimated costs. To be able to do this correctly, you need to have a clear understanding of your assets and liabilities, the amount of income you both make, and whether either or both of you might have hidden assets you do not yet know about. Knowing this information ahead of time will let you know exactly what you are entitled to by law in your divorce under the laws of equitable distribution.
Once you are sure of what you want , you can begin negotiating with your ex towards an amicable agreement. It is important to note that these discussions are not legally binding until they are signed by both parties in front of a witness and notarized, so pay attention to what you say to each other. At the same time, be frank about what you want. If you’re hoping for full custody of the children, tell your ex what you are looking for, why it is in the best interests of the children, and what it would require. You should be willing to negotiate what you expect from your ex if she is not willing to agree to your proposal, so be ready with a compromise and a Plan C if your ex counters.
If you do not feel confident enough to negotiate with your spouse, a mediator can help speed along the negotiation process. Mediation is a process by which a third party meets with you, your wife, and the children if appropriate to go through a list of concerns, together, to see where you can agree. You do not have to come to a settlement agreement, but if you do, that agreement can be made into a legally enforceable court order if properly signed and witnessed.
In the end, these negotiations can save both parties an immense amount of time, worry, and money, and produce fairly amicable relationships between you and your wife, as well as you, your ex, and your kids.