Who gets what?

Exploring the less-than-wonderful world of divorce and property division

Though a divorce or separation can be a painful period of time for a couple, the question of who gets what once a marriage dissolves can often be the great unknown.

Uncertainty about assets and individual financial security play a significant role in making a potentially difficult time even harder, says Lindsay Ewens-Jones, a family law lawyer, mediator, and arbitrator with McGurk LLP Family Law Lawyers.

“When people are separating or going through a divorce, they are anxious about their future, both financial and otherwise,” said Ewen-Jones. “So what [each party] will receive in the ultimate division of property is of great concern.”

In cases of divorce in Alberta, the Matrimonial Property Act governs the division of property, and it concerns matrimonial property, which is any and all types of property acquired during a marriage (regardless of if said property is bought jointly or in just one spouse’s name). This includes vacation and rental properties, businesses, pensions, household items, registered and non-registered investments, vehicles, bank accounts and the matrimonial home, or, simply, where the two parties lived during their marriage.

According to Ewens-Jones, the general rule of thumb is assets and property are divided equally at the end of a marriage. However, there’s a bit more to it than that, as Ewens-Jones says “there are exemptions to that ‘everything gets divided equally’ rule.”

Exempt assets, for example, are those which are usually owned by only one party, or one half of a splitting couple. They can come in a variety of forms, including property that’s acquired by a gift or third party, by inheritance or any property that was acquired by one party before marriage.

In such cases, Ewens-Jones says exempt assets are “retained by the spouse whose name they are in. Prior to the division of matrimonial property, we remove them from the pool of assets and then divide the remaining matrimonial property.”

While the division of property during a divorce or separation is not cut or dry, Ewens-Jones says there are “nuances” in the law, and recommends that separating couples seek professional legal help to navigate them through the ins and outs.

“The number one important thing to do would be to go to a mediator that is experienced and knowledgeable in family law so that you can get some accurate info and protect yourself.”

This, she says, will help the parties involved avoid getting caught in scenarios – and negotiating on settlements – that can be potentially expensive or impossible to fix later on.

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