Division of Property Claims
Attempting to divide up property accumulated during the course of your marriage can quickly turn stressful. In situations where the divorce is being contested or there are feelings of resentment, anger, hurt, or hostilities towards the other party, it further complicates dividing up property. At Niroomand Family Law, we specialize in helping you obtain a fair property settlement after separating.
How Is Property Divided for Legally Married Couples?
Property division is conducted based upon the Ontario Family Law Act for legally married couples, as well as legally married same-sex couples. The Act contains two sections in how property is divided. The first section includes all property and assets acquired from the time the couple married, until they separated, excluding the marital home. The second section specifically deals with the martial home.
There is a specific formula used to determine the division of property for the first section. The value of all property and assets are added up. Next, all shared debts are added up and subtracted from the total value of property and assets to establish a net amount. The net amount is used to determine the division of property. With shared debts, each party is responsible for the debts. The actual amount each person is required to pay depends upon several factors, such as income and whether the debt was incurred for the couple’s children.
Certain types of property are debts are excluded and there are exceptions, like property and assets owned and debts owed prior to the marriage, as well as personal clothing. In addition, if the divorcing couple has a prenuptial (marriage) contract, items listed within the contract are excluded. Dividing up property and assets is a rather detailed process and for this reason, you should ensure you retain the services of an experienced Toronto divorce lawyer.
In regards to the martial home, deciding what to do with the home largely depends on whether the couple has any children. If the divorcing couple has no minor children, there are a few different options. The home could be sold and the proceeds split or one person could buy out the interest of the other person and retain the property.
Typically, in cases where there are children, the custodial parent will continue to reside in the martial home with the children. The parents could decide to keep the home until the children reach the age of majority or until more suitable housing accommodations are found by both parents and then sell the home and split the proceeds. During this time, both parents are equally responsible for mortgage payments, property taxes, and other expenses to maintain the home.
Since Canadian Law requires a one year waiting period for a divorce to be finalized, the last thing you want to do is wait a year to divide up property. Rather, you are able to include the division of property as part of a separation agreement. Toronto family lawyers at Niroomand Family Law are able to work as intermediaries between you and the other party by enlisting the assistance of a mediator. Mediation is a viable option to establish a property settlement arrangement, even in cases where there are hostilities and communication issues between the divorcing couple.
How Is Property Divided for Common Law Couples?
The laws regarding division of property for common law couples is handled differently. The law does recognize common law couples, who have resided together for an extended period of time or have a child together. In these cases, the separating couple may have certain property rights. The process to request division of property is very complex and detailed. Your Toronto family law lawyer has to file constructive and trust claims based upon the concept of one party receiving unjust enrichment from the property, as well as use precedents established in prior common law division of property cases. It never hurts to consult with a lawyer to discover your property rights, should your common law relationship end.
For more information about division of property or preparing a separation and property division agreement, call Niroomand Family Lawat 800-567-0256.