Division of Property in Divorce
Advice on Divorce and Property
Property division can be a very complicated part of a separation or divorce, especially with the 2013 Family Law Act. Because of this, it is highly recommended you seek the advice of Thomas and Associates; Trial and Appeal Lawyers as early as possible in the process.
The new Family Law Act has significantly changed the rules respecting the division of assets. Now, although the same rules of division apply to both common law spouses as married couples, those rules have significantly changed from what prevailed under the former Family Relations Act. While the goal was to simplify how family assets were to be divided, the issues are as complex as ever. There appears to be an even greater emphasis on an equal division of assets than existed under The Family Relations Act, however, the new Act is too young to conclude that as a certainty. It is not certain how courts will deal with the remaining concept that a party should be entitled to be awarded a reapportionment of family assets, especially in light of the very new idea concerning Excluded Assets.
How is Property Defined?
Although the Family Law Act defines family property, it also introduced the idea of Excluded Assets. However, to date the trial decisions dealing with Excluded Assets have resulted in conflicting decisions. How parties deal with Excluded Assets before separation has proven to be a minefield for such parties, and in some cases, although a party attempted to maintain the status of having excluded properties, they have lost the excluded property because of how they dealt with the property.
Further, parties can still seek a reapportionment of family property. The factors that courts look at has changed from the previous factors set out in the Family Relations Act, although there is a fair convergence of the previous factors. Again, however, courts are still struggling to determine how to treat applications for reapportionment. In any such analysis courts will look at direct and indirect contribution to a particular asset and to needs of the spouses to become economically independent. Much of the court’s review will focus on the length of the marriage, the roles assumed by the parties, whether one of the spouses gave up a career to raise the children allowing the other spouse to advance that party’s career or businesses. Also in play will be how one or both of the parties acquired Family Property. The manner of obtaining the family property will significantly impact how a court views how such property is divided.
What is included as Family Property in Divorce?
Family Property generally includes the following types of assets, the matrimonial home, companies, business assets, pensions, RRSPs, bank accounts and investments. Tax and valuation issues can be complicated, and often require professional valuations. Sometimes it is appropriate to have a business valued by an appropriate expert; sometimes a valuation of a pension or pensions is required; sometimes advice needs to be obtained from a tax expert. The noted experts may be required not just for trial purposes but for settlement negotiations as well.
The general rule is that all assets accumulated during a marriage are divided equally between the two parties, although there are some exceptions. Your particular marital history may impact the noted presumption. Given the complexity of property division law, we implore you to seek the advice of Thomas and Associates: Trial and Appeal Lawyers as early as possible. In fact, you may wish to obtain advice on how you should deal with Excluded Assets when you receive such assets and how best to deal with such assets in the future.
After we take your background, we can work with you to plan an appropriate strategy to divide and equalize family property. It may be that it is your goal to seek a reapportionment of your business, exclude other properties and divide the balance of the family property equally. Knowing your goals and having the background and perhaps working with your and appropriate experts, we work toward those goals.
Business Valuations as Family Property
Likewise, it may be your goal to have your spouse’s business valued so that you can seek your fair share of the business and allow you to keep the former matrimonial home. Again, working with your from an early stage will facilitate meeting those goals.
The above division of property issues normally go hand in hand with determining income and support obligations. Whether you might end up being required to pay the other spouse support or you may be the recipient of such support, the complex nature of the issues requires seeking the advice of Thomas and Associates: Trial and Appeal Lawyers from an early stage. Planning and preparation are key to success.
Thomas and Associates: Trial and Appeal Lawyers is known for developing creative solutions to complex property division problems and negotiating and litigating fair property settlements. Thomas and Associates are knowledgeable, experienced family lawyers who will help protect your interests as your property and debts are divided.