Enforcing Separation Agreement - Spouse Required to Take Over Mortgage

[250jeepers]

Hi there,

I was hoping someone here might be able to give advice. Legal aid and the law clinic have said they're unable to help.

I'm sorry if there is extraneous detail... I just don't know what to leave out and what might be useful!

My husband and I separated December 2008, and signed a separation agreement at the end of January, 2009.

Among the debts for which he accepted "sole and exclusive liability," and "indemnifi[ed] and save[d] harmless Party 2 (me) of and from any and all liability" in the agreement was the mortgage for our Matrimonial home, which we hold in joint tenancy.

The agreement as signed, in which husband is party 1 and I am party 2, states that:

"Upon obtaining gainful employment, the Party 1 will obtain sufficient financing to discharge Party 2's mortgage obligations..."

While he is currently not working, I do know that he was gainfully employed for some time this year but made no effort to obtain a mortgage (and also tried to keep it from me that he was employed).

I am of good mind to take this to a lawyer and take it to him, as he does get the better deal in the separation, and I feel that I could likely challenge things, but I would much prefer he simply get the mortgage, take the house (which he wants anyways) and have this done with.

How should I go about enforcing the terms of this agreement? I am low income and worry about the expenses involved with a lawyer. Please let me know if there is more info I can give or verbiage I could quote from the agreement.

Thanks in advance,
250jeepers

 

[dee_dub]

Have you filed your separation agreement with the court yet? If not, do so. Then apply for an order that your former spouse is in contempt of court. You will likely need to obtain an order for production of his tax returns etc. so you can prove he was gainfully employed but did not refinance as required. It's easier to hire a lawyer, but you can probably do it on your own. There are some good BC family law guides. I'd start here:
http://www.bcfamilylawresource.com/10/1003body.htm

 

[250jeepers]

Thank you dee_dub!

I had a look at the page to which you'd linked me, and others, and was just looking for a little more clarification.

On the page to which you linked me it states:

Issues about the division of assets and other issues can be dealt with by applying for an order for the "specific performance" of the agreement. An order for specific performance is an order requiring a party to comply with the terms of the contract, such as the transfer of property or the payment of money.

This sounds exactly like what I'm seeking - the enforcement of our separation agreement, to the letter, in the parts of the agreement that pertain to the division of property and debt.

Should I apply for an order for the "specific performance" of the agreement?

Thank you again for providing this resource - I'm beginning to feel confident that I may be able to get this sorted out without needing a lawyer (yet).

And, in you opinion, if you're able to give it, if the lawyers *do* get involved, which is beginning to look like an eventuality, won't it work in my favor that I'm attempting merely to enforce the exact terms of an agreement that we both signed and had witnessed? It seems that my position is much stronger than his. While I'd like to be fair, is it possible, if you're able to speculate on such matters, that getting a lawyer could get me much more in the division? I am worried that getting the lawyers involved could in fact cost me in terms of property division... Is it possible, or likely, that turning things over to a lawyer could leave me with *less* than we'd agreed upon and signed? Or is the signed separation agreement a solid foundation upon which to build a bid for more? Each day I become less sympathetic towards him, and if getting a lawyer would likely leave me in a better position than simply having the agreement enforced (which is all I've really wanted), I may have to go for it.

Thank you again for your time in this free resource. I apologize if any of the above is unclear... this is a draining process for me. Please let me know if I can provide any clarification with the above.

Also - does anyone know how I could find out how much a lawyer might cost in this situation? Do I have to pay a lawyer to help me determine whether to hire him or her?

Thank you so much