The issue of family property division is usually one of the most contentious during a divorce. In Ontario, the law protects both spouses throughout the process of property division. So whether you are the individual filing for divorce or being divorced, you still have certain rights.
What Happens During Family Property Division?
When you and your spouse decide to end the marriage, the law requires you to divide certain property equally among yourselves. This can be any property, such as:
It is important to note that in this context, the term ‘property’ refers to items you share in your life that might hold some value.
What Happens to Property You Owned Before Marriage When You Divorce?
The property you owned before marriage is your personal property. For this reason, it should not be part of the property division process. This process only involves property you and your spouse owned together during the marriage.
For example, if you owned a car valued at $100,000 when you met your spouse, family law considers such a car as personal property. However, suppose you and your spouse bought a house after getting married to each other. In that case, the house is community property, meaning you must share it among yourselves during the divorce unless there is an agreement stating otherwise.
For any property you owned before the marriage, you will have to share any increase in value of that property equally with your spouse. This law applies even if you:
- owned the property before you got married;
- received the property as a gift; or
- inherited the property.
For instance, using the example above, when your spouse moves in with you, and you get married to each other, you must share any increase in the house’s value equally amongst yourselves.
Exceptions to Family Property Division Laws During Divorce
There are certain exceptions to property division laws during divorce that you should know about. For example, you can keep any property that:
- you received from an insurance company (usually financial compensation) because someone died;
- you received or are entitled to due to personal injury compensation;
- you and your spouse have decided to exclude through a separation agreement; or
- you inherited or received as a gift from someone other than your spouse during your marriage, except the family home.
What Does the Court Consider When Dividing Property During a Divorce?
Many factors come into play when dividing property during divorce. Some of the most common include:
The court will determine whether you and your spouse acquired any family debt. If so, the court will order that you share responsibility for the debt even after divorce.
Similarly, if you acquired debt while legally separated from your spouse, the court might find both spouses responsible for the debt. This happens even if only one spouse obtained the debt when legally separated from the other spouse. However, this rule applies only under one condition – if the spouse obtained the debt to take care of the family property.
As discussed before, the court will evaluate the property you owned before and during the marriage. Generally, the property you owned before marriage is your personal property. Conversely, property owned during the marriage is communal property, meaning you will have to share it with your spouse when you get a divorce.
Do I Need Estate Planning During or After Divorce?
Yes, you do. You risk losing part or even all of your estate without estate planning during a divorce. Similarly, you may not know what you are entitled to or the laws that apply to you during divorce if you do not seek legal counsel.
After divorce, the importance of estate planning significantly increases. This is because estate planning laws can be complicated, and you need to work with someone who is familiar with these laws and ready to fight for your rights and interests.
After divorce, you also need to update your estate plan and will. This is because in most cases when you are married, your spouse is usually the primary beneficially of your estate. The sample applies to your life insurance and other benefits.
For this reason, your lawyer needs to know the plans you have in place and what obligations you may have to your ex-spouse when you die. Also, the lawyer will provide professional legal advice while serving your best interests.
An estate planning lawyer from Bykov Law can also help you with the following after divorce:
- updating your health care proxy (unless you want your ex-spouse to make decisions about your health when you are incapacitated, which is highly unlikely);
- changing your power of lawyer;
- revising your will and trust;
- reconsidering guardianship if you have minor children;
- ensuring you have trust in place for your children;
- updating your life insurance; and
- updating your 401K, IRA, and other relevant accounts.
How to Choose the Best Toronto Divorce Lawyer for Family Property Division
While there are so many things to look for in a Toronto divorce lawyer, the truth is, almost half of those things are not as important. For example, the size of their law firm does not matter that much – what matters is whether the lawyer assigned to your case has time for you.
In addition, you need to ask yourself the following questions:
- How experienced is the lawyer?
- How responsive is the lawyer when you contact them?
- Will the lawyer work on your case, or will they assign it to another lawyer?
- What are the costs involved?
- Has the lawyer handled similar cases before?
- What is their track record?
- Does the lawyer have any references?
How the Toronto, ON lawyers at Bykov Law Can Help
At Bykov Law, we understand how stressful it is to go through the divorce process, including family property division, and that is why we are here to help. Every divorce process is unique, hence deserving a distinctive approach. So when you need someone to fight for your rights and property during such difficult and stressful times, contact us today at 416.519.3259 to speak with one of our experienced family law lawyers in Toronto.