Matrimonial Asset Division: Calgary Family Lawyers
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Matrimonial Asset Division: Calgary Family LawyersJeff Kahane2020-04-26T16:49:56+00:00
Division of Matrimonial Property
How Matrimonial Assets Are Divided In Alberta
When a breakdown of a marriage occurs, whether it be a separation to divorce, there are several things to consider concerning home ownership. But, what if you and your spouse cannot agree on how property is divided? In Alberta, the Court applies the Matrimonial Property Act (MPA) to divide assets fairly. The MPA only applies to legally married spouses in Alberta. It does not apply to individuals in a common-law relationship. So, following a divorce or legal separation, who gets to keep the house? Read on to find out more. If you need more help, the family law lawyers at Kahane Law Office offer full services. Often people book only a single consultation. This allows them to understand their matrimonial asset rights. Other people retain us to negotiate a deal. Lastly, we frequently go to court for our clients.
When Spouses Disagree On Property Division
If both spouses cannot agree on how to divide the matrimonial assets or a specific matrimonial asset, the court shall make the final order for them under the Matrimonial Property Act.
Morning chambers is not the place to deal with matrimonial property, other than by way of consent matters, procedural orders and possibly interim distributions. Matrimonial property division is final, and requires a final process, such as a consent judgment, summary trial or full trial.
In making the order, the Court will examine all the assets and debts each party has accrued during the marriage whether in individual names, joint names or company names. The Court will also examine the assets brought into the marriage from outside, for example, inheritance, gift from third party, pre-marriage asset (also called the ‘Exempt property’). While all assets and debts acquired during marriage are split equally, the increase in value of the Exempt Property is distributed in a manner it considers ‘just and equitable’.
Factors Courts Do Not Consider For Dividing the Matrimonial Assets?
The Court will not consider whether a spouse was unfaithful or domestically abusive during the marriage unless it relates to the improper sale or use of the matrimonial property.
What Is Considered A Matrimonial Asset?
Matrimonial property includes all property acquired by either spouse during the course of the marriage. This includes a matrimonial home (see below) purchased by either spouse, either as a couple or individually. Matrimonial property is generally divided equally between the spouses after the marriage ends.
As mentioned above, there is also property that is excluded from equal division after the end of a marriage called ‘exempt property’. This includes property either spouse acquired before the marriage, or property that a spouse inherits or receives as a gift during the marriage.
What Is A Matrimonial Home Under The MPA?
The most significant matrimonial asset that couple own is usually their home. A matrimonial home includes various kinds of property such as a:
House or a part of a house,
Condominium or a suite, or lastly
In order to be considered a matrimonial home under the MPA, the property must be located in Alberta. It must also either be leased or owned by one or both parties. So, if you and your spouse lived in a house owned by a spouse’s parent, the home would not qualify as a matrimonial home. The home must also be occupied by the parties at some point during the marriage. this is for the purposes of determining that they were living in it as a family home. This means that a summer cottage or a vacation home is not a matrimonial home. The Courts in Alberta lack jurisdiction over matrimonial assets, including matrimonial homes, in other provinces or countries.
Are There Exceptions To The Division Of Exempt Property?
While the value of the Exempt Property as of the date of marriage or on the date on which it was acquired is exempted from distribution, the increase in the value of the exempt property from that date to the time of trial (or wh
enever parties agree to settle), shall be distributed in a manner that the Court considers ‘just and equitable’. In making this assessment, that Court shall consider certain factors such as:
What each spouse contributed in the marriage,
The financial situation of both spouses,
Any agreements the parties made,
How long the marriage lasted,
Whether there are existing Court Orders, and lastly
If a spouse incurs a tax liability when transferring a home or selling it.
If the increase in the value of the Exempt Property is considered a product of the marriage, the courts more often divide it equally. For example, if a spouse buys a home before marriage and, after marriage, the parties lived in that house together, matrimonial money was used to pay the mortgage and towards the upkeep of the house, one of the spouse painted the walls, other worked on the backyard etc the home would be considered to be brought into the marriage and will likely be subject to equal division under the MPA.
Matrimonial Assets: Equally Divided Between Spouses?
It depends. According to the Matrimonial Property Act, the Court must divide any and all matrimonial asset(s) fairly. Typically, this means that the Court divides the matrimonial assets equally between spouses. There are times that the courts looks at persuasive reasons why a rational exists for an unequal division.
What are Dower Rights And How Do They Impact Me?
An important consideration is the Alberta Dower Act which gives married parties certain rights concerning the family home. The Dower Act applies to real estate that only one party owns but either parties lived some time during the marriage. For a minimum period of three years, the family home cannot be sold, gifted, or rented unless both spouses consent. If you get divorced, you lose your dower rights. If a dower release is on title to your home, then you require no further waiver. However, discharge the dower release is a simple process.
When Can I Apply For A Matrimonial Property Order?
A Statement of Claim for filing an application for Matrimonial Property Order must be filed within 2 years after the date the spouses separated. Alternatively, the limit to file is or one year after the date the property is transferred or given away (whichever occurs first). The action for a matrimonial asset cannot start later than two years after the court grants a divorce judgment.
Living In Matrimonial Home Without Former Spouse After Separation?
If you want to live in the home without your spouse, regardless of whose name the property is under, the Courts may grant you the exclusive possession of the home. The Court sometimes uses other order. For example, these include that:
one spouse gets exclusive possession of the home, or/and
the eviction of the other spouse from the home, or/and
they restrain a spouse from entering or attending to the home.
The Court shall consider few factors before making such an Order including availability of other accommodation, the needs of any children residing in the home, the financial position of each spouse etc. In emergency circumstances, we make this application without informing the other party. For example, these situations include when you or a child living in the home is at risk of danger. It is important to note that an exclusive possession order does not change who legally owns the property. This order only allows a party to live in the home for a certain period of time.
Need Legal Help With Dividing Your Assets?
Division of matrimonial assets are a complex matter. In most cases, the assistance of a lawyer is highly recommended. The division of even a single matrimonial asset can cause extreme disputes between divorcing couples. Our matrimonial property division lawyers, in Calgary, Alberta meet with you and explain your rights and obligations regarding post-separation property division. Call us today at 403-225-8810 (toll-free at 1-877-225-8817), or email us directly here.