Every divorce has its fair share of contentious issues, from child support to spousal support to which parent(s) may retain parenting time and/or decision-making responsibility over children produced by the marriage. However, one of the most complex components of most divorces across Canada is property division. In other words, determining how the ownership of assets and responsibility for debts will be split between two separating spouses is a common source of contention in divorce.
Let a seasoned family lawyer help you understand how provincial law governs the distribution of marital assets and what to expect from the process. If you want to proactively protect your best interests and rights, working with an Ottawa property division lawyer may be vital.
The asset division stage of a divorce primarily revolves around what is known as the “family patrimony,” a term which refers to assets jointly owned and shared between both spouses in a marriage. Certain types of property—most notably, the matrimonial home and all furniture therein, motor vehicle(s) used for travel as a family, and most money gained during the marriage—are automatically included in the family patrimony. Other assets and properties can be added to the family patrimony through a legally enforceable marital contract.
Any property which is not explicitly designated as being part of the family patrimony or acquired during the marriage would not be subject to division during the divorce process. Otherwise, certain types of property and assets are never included in the family patrimony, such as money received from a personal injury settlement or life insurance payout and property other than the matrimonial home obtained through inheritance or as a gift from someone other than your spouse. A knowledgeable Ottawa property division lawyer could discuss what items may be considered separate property in more detail during an initial meeting.
Numerous unique rules apply specifically to a couple’s matrimonial home(s). Most notably, the matrimonial home is always considered a divisible asset during divorce even if one party had sole ownership over it before the marriage began, and provincial law stipulates that both spouses maintain equal rights to reside in a matrimonial home during the divorce process. The only exception to this rule is if a judge issues an order of exclusive possession granting one spouse exclusive rights to stay in the home for a specific period of time, usually due to domestic violence allegations against the other spouse.
While liquidating all marital property and splitting the proceeds is a straightforward way to divide assets, it is rarely a preferable option for divorcing couples in Ottawa. Typically, each spouse will calculate their Net Family Property (the total market value of everything they own, plus the market value of non-divisible property like inheritances, debts, gifts, and property owned before the marriage) and then calculate the difference between their NFPs.
This difference is the amount that one party would have to provide the other to level the financial playing field post-divorce, which can be addressed in different ways with different assets. An Ottawa property division lawyer could clarify how the asset division process works in greater detail and explain the unique rules that apply to property distribution during the dissolution of common-law marriages.
The approach to splitting marital debt is a little different compared to marital assets. The way the court ultimately splits these debts will depend on which spouse is the named party.
To begin with, spouses are responsible for any debt that is in their name only. This is true of any debt they took prior to the marriage, but it also applies to debts incurred during the marriage as well. Of course, many marital debts are in the names of both spouses. In such a situation, the court will split those debts evenly between both spouses.
If you have earned a pension during your career, the proceeds of that pension could be divided upon divorcing your spouse. The amount of your pension earned during the course of your marriage must be included in your NFP calculation and is subject to division.
The primary exception applies to pension earnings accrued prior to marriage. Unlike the pension earned while married, these earnings are not subject to NFP calculation. When divorcing, the court will calculate your pension starting on the date of your marriage. Everything prior to that date is solely in your possession.
The law surrounding the matrimonial home impacts more than just how your marital property is divided. Because of the unique legal status that applies to the matrimonial home, you have rights that could extend beyond how your property is divided.
When it comes to the matrimonial home, you have the same rights as your spouse. Both of you have equal rights to remain in the home and continue living there while the divorce proceedings unfold.
Though, there are some exceptions worth noting. For starters, the judge has the power to issue an order requiring a spouse to leave the matrimonial home. This is done through something known as an “order for exclusive possession.” This type of order is common in cases of abuse. The rights to the matrimonial home also end once the property is sold.
Leaving the division of marital property up to the judge can be concerning for most people. There is no way to know how the court might rule regardless of how strongly you feel about your position. For that reason, many divorcing spouses work to resolve their property division issues through a negotiated settlement.
The most important tool in an Ottawa property division case is the guidance of a skilled lawyer. Your lawyer could not only handle negotiations on your behalf, but help you understand what you could expect should your case require a hearing.
Negotiations are worth pursuing, but some divorcing couples will never be able to come to an agreement.
When an agreement cannot be reached, the guidance of your lawyer is more important than ever. While there are times when a trial on property division issues is unavoidable, your diligent Ottawa lawyer could continue pressing for a fair resolution to your case up until the moment the hearing starts.
Making sense of the regulations and restrictions imposed on divorcing spouses in Ontario can be crucial during the asset division portion of your case. Help is available from a dedicated legal representative who knows how to handle situations just like yours based on years of past experience and legal expertise.
Retaining an Ottawa property division lawyer should be a priority for anyone looking to protect their own interests during a divorce or separation. Call today to schedule a meeting with family lawyer Paul Riley.
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