Family property are those items which are acquired during a marriage, including real estate, possessions, pensions, businesses, cash and other assets. You are obligated to fairly divide virtually all property and debt that was acquired during the relationship. If one spouse owned property prior to the relationship, it is usually the increase in value that occurred during the relationship that is divided equally, not the full value.
Provincial guidelines dictate the procedures for property division and, in most cases, spouses divide all family property in half, with the exception of excluded property as described below. It is possible for the court to make an order for unequal division of property in cases of significant unfairness to one party.
The property you owned prior to the marriage is your excluded property and your spouse is only entitled to half of the increase in value from the commencement of the relationship. Some property is considered excluded even if it was received after you were married.
Inheritances and gifts given to only one spouse are deemed to be their excluded property. However, if that inheritance is spent on the family (to maintain or upgrade a home, for example), the exclusion could be lost. Again, much depends on the property and the circumstances surrounding the manner in which it was used. The increase in value of inherited and gifted property is also equally divisible.
The law considers your pension and other retirement accounts accumulated during the relationship as family property, which means they are divided equally. Because pensions are not paid out until the earliest retirement date, it can become quite complicated when dividing that asset. If it is agreed that one party will keep the pension and the other will receive half of its value through other property retained, it is often necessary to hire an expert to determine the correct value.
Businesses, whether corporate or family, are considered family property for purposes of property division. The same rules apply in that only the increase in value is equally divisible. It is usually necessary to hire a business valuator to determine the value of your business at the start of the relationship and currently.
There are alternate options in how the business can be divided. For example, you could elect to trade your spouse’s share of the business for another asset. If your spouse is an integral part of the business and you believe you can continue running the business together, you could create a contract and update the business’s corporate documents to reflect an equal partnership.
Wealth (and debt) created and acquired during the relationship is rarely cut and dry. Many couples assume that dividing property is simple, but that usually doesn’t end up being the case. To negotiate the complex situation requires experienced and professional legal help. Darnell Law Group has been part of a wide variety of cases, allowing us to best serve your unique property division case.
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