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Property & Debt Division

Property debt division is the process of dividing marital property and debts between two divorcing spouses. While this may seem like an easy process, especially in an amicable divorce, the law is not always aligned with common sense. In addition, you may find that both spouses have a different understanding of what is fair.

During this process, literally everything you own is on the line. It’s also a difficult and emotional time, during which you may have a desire to punish your spouse or at least not let them have everything. Our firm can help you protect your rights, while also controlling your legal costs to ensure that what you “win” isn’t wiped away by additional legal fees.

Family Property Law

When you divorce or separate, all property that you owned must be identified and shared with your spouse. Exactly how depends on how you acquired the property and the circumstances surrounding your marriage.

As a general rule, property you acquired during marriage must be shared, while property you acquired before marriage is yours alone. There are some exceptions to this rule such as that a gift or inheritance expressly made to one spouse is that spouse’s sole property.

Marital property is divided equally but this doesn’t necessarily mean one half to each spouse. The courts follow an equalization process that considers a number of factors such as each spouse’s contributions during the marriage and what they owned before the marriage. The length of the marriage may also be considered.

Once the court sets a proportion for how marital assets should be divided, you may wish to negotiate over specific items. For example, this might include one spouse remaining in the house with another taking a greater share of cash or investments. In addition to sentimental feelings, you may wish to take into consideration your long-term goals and the tax consequences of selling assets.

Matrimonial Home Exception

One key exception to the rule of a spouse keeping what they brought to the marriage is the matrimonial home. A spouse who brings their home to a marriage does not receive credit for it when property is divided. Instead, the home’s value is divided equally.

In addition, it does not matter whose name is on the title or what your living arrangements are on paper. Under the law, both spouses are presumed to have a right to the matrimonial home.

Partnership Presumption

As a general rule, the courts view a marriage as a partnership. This comes into play when one spouse is the primary breadwinner while the other stays at home or has a part-time job.

The courts presume that both spouses are equally contributing to the marriage even though they may not be making equal contributions. This often includes things like general upkeep of the home, raising children, or making sacrifices to help the other spouse further their career.

Pensions

Pensions are another unique item in divorce proceedings. Even though they are usually in the name of one spouse, there is a presumption that both spouses would have shared the benefit of the pension during their retirement.

Pensions are therefore included in the marital property. Division may be accomplished by a direct withdrawal from the pension or by substituting other assets.

Frequently asked Questions

How do assets get divided during a divorce?

Most often a judge will rule that assets that were accumulated before the marriage stay the property of the person that brought it into the marriage.

Most assets that were purchased during the marriage are shared between the two parties.

Assets that were purchased after the couple separated but before the couple divorced are often fought over. Make sure you talk to our family lawyers before purchasing assets.

Most often the assets are not actually divided, but instead a total amount of value is given to each spouse. All assets will be listed based on who is in possession or controls them.

For example using fake names:

Bob Smith ($1,000,000)

Sarah Smith ($800,000)

Bob owes Sarah $200,000.

This helps you calculate your net family property. It’s how many assets each party has at the end of the marriage after deducting what isn’t going to be divided. Debts will also be a major factor in the calculation.

Our family law firm has advanced divorce software that we use to calculate this (Divorce Mate.)

How do lawyers charge to help divide assets?

Our family law firm offers “unbundled” or “limited scope” services. You can hire our lawyers for only what you need help with, or to represent you for the entire family law dispute.

Our law firm is unique in that we try and flat fee EVERYTHING. This is great because even if it’s a lot, you know exactly how much it will cost you.

Do I need a lawyer to get a divorce?

You don’t need a lawyer to file for divorce, but we would at least recommend a meeting with a family lawyer before doing so. There may be complications that you are not aware of. Many people have issues come up years after getting a divorce. There are also a lot of changes that might happen once you get divorce, such as losing your health care benefits.

It’s always best to be prepared. You can get a one-hour meeting with our family lawyer for only $100. You can book it directly on our booking software.

Splitting assets if you are not married

Many people say that being common law is the same as being married, and it’s false. Both parties will keep everything they brought into the common law partnership but will likely share the value of the property that they own together.

If you do not want this to happen, you should get a cohabitation agreement. Our family lawyers can flat fee bill for this under two different options, simple or complex agreement. Reach out to us today to find out if it would be simple or complex. The prices for each are very different.

Our family law firm often gets asked if it is required to have a lawyer for child support / spousal support. We always suggest at minimum booking a consultation with a family lawyer before signing any documents.

Even though it is possible to sign or agree on spousal support without a lawyer, it is important that both parties understand their rights and obligations.

There are three different ways to book a consultation with our Toronto family lawyers:

  1. Use our 24/7 booking system (easy to use)
  2. Text us 24/7 at 647-360-6331
  3. Call us on our toll free number at 844-466-6LAW (529)

Division of Debt in Divorce

Debt is treated in a similar manner to your other property. Debts from before the marriage are the responsibility of that individual. Debts from during the marriage are shared equally taking into account why the debt was incurred and whether it benefited the marriage or a specific spouse.

It is also possible to negotiate how to divide marital debts. For example, a spouse who wishes to keep a house, boat, business, or other large asset may agree to take on additional debt. One scenario where this is especially useful is if most of the marital assets are illiquid and couldn’t be equally divided without selling them.

Book a Meeting with a ClearWay Lawyer

Property and debt division requires a careful balance of being fair while also making sure that you get what you’re entitled to. We encourage you to discuss your situation with a lawyer before you make decisions on your own.

We’re conveniently located on Bay Street in Toronto. Other law firms may offer free consults which often last 10-30 mins and no legal advice is given.

Some of our lawyers offer free 30-minute consultations, some charge for an hour consultation. It depends on how senior the lawyer is. We have multiple locations which can be seen at the bottom of this page, and welcome your call at 844-466-6LAW (529) or text to 647-360-6331.

If you do decide to self-represent, we also offer legal coaching services. This allows you to obtain ongoing advice without the expense of retaining a lawyer to fully handle your case.

Why You Need a Property Debt Division Lawyer in Toronto

Our Toronto property debt division lawyers are here to answer your questions and guide you through the process. We may be able to help you with the following.

  • Explaining your legal rights.
  • Arguing that a division other than strictly 50/50 is appropriate.
  • Having the court take into account taxes or transaction costs when dividing property.
  • Dealing with any special issues that arise when you own property in another province or country.
  • Mediating disputes between you and your spouse.
  • Formalizing any agreements that you’ve come to as part of an amicable divorce process.

Read more: Is It True Marriage Is Dying?