If you are going through a separation or divorce, ensuring that you protect your financial well-being is an important issue. Divorce can lead to great financial difficulty if you don’t get your lawful share of the assets and if you consent to a support arrangement you later realize is unfair. Finding an effective divorce lawyer in Vancouver can help ensure that you walk away with a deal you won’t regret when it comes to finances.
Division of Property
One of the most obvious financial concerns when going through a divorce is what will happen to your home, and how asset division will be handled between you and your spouse. If you cannot agree on how to divide your property, the Supreme Court can order an equal or unequal division of property and debt.
A lawyer will help you assess your best options when it comes to trying to reach an agreement with your former spouse about what should be done with the family home. Often, it makes sense to sell the home and divide the proceeds (assuming the house is “family property” – things are more complicated if the home was purchased prior to marriage). Or, you may wish to reach an agreement with your spouse about compensation if one spouse wishes to say in the house and can afford to carry the costs solely.
Family Property vs. Excluded Property
As above and in accordance with s.84 and s.85 of the Family Law Act, it must be determined which assets constitute “family property” and which assets are “excluded property.”
A home in B.C. purchased prior to your marriage will likely be deemed “excluded property,” meaning that the person who purchased it will not be required to divide proceeds of the property with his or her spouse. However, any appreciation in the value of property or other assets purchased prior to marriage will generally be divisible between spouses.
If you owned other assets, gifts or inheritances before you got married, these assets are also excluded from the division, according to s. 85 of the Family Law Act, except for the increase in value that occurred while you were together. Also, if you sold the excluded property during your marriage to purchase other property, you can still exclude the value of the traceable property from the family property division.
It is important to speak to a lawyer about your entitlements. Your lawyer can help you approach the situation with your spouse’s counsel, knowing what property may be included or excluded. For example, you may view a gift from your parents for a house down payment as your asset that is excluded, yet the courts could view the amount as a gift from one spouse to the other.
Division of Debt
When you divorce, each spouse is generally equally responsible for family debts. Family debts include the following:
- Lines of credit
- Credit cards
- Income tax owed
- Joint loans/debts owing to members of the family
- In some cases, debts taken on after separation may also be included in family debt if the money was spent to take care of family property.
Other Considerations in the Division of Property and Debt
Of course, if you and your spouse had a pre-nuptial agreement or marriage contract in place, this agreement can significantly change your entitlements above. The length of your relationship is also considered and how much each of you contributed to the other spouse’s career or career potential. Further, if you have significant debt, how the family got into debt is considered. A divorce lawyer in Vancouver can help you review and assess the considerations which are unique to your family.
In calculating the appropriate quantum of spousal support to be provided to a former spouse, if any, the following factors will be considered by B.C. courts:
- Your financial status
- Your spouse’s financial status
- How long you and your spouse were together
- The roles that each spouse played in the household (i.e., who took care of housekeeping and cooking, who worked full time or part-time, and other factors that show what each party contributed to the relationship)
- What is required for each spouse to become self-sustaining (e.g., if one spouse gave up remunerative work to assume household and childrearing duties, he or she may need to return to the workplace, and may require re-training and/or job-search assistance).
These factors will influence whether spousal support is granted at all, how much, and how often payments must be made.
An experienced family lawyer will understand how best to explain and elucidate your situation in order to reach a fair result for you.
Child support is an important financial consideration upon divorce, particularly if one parent ends up with sole custody and primary residency of the child or children. An experienced family lawyer will help you negotiate a fair agreement when it comes to how much each spouse pays to ensure that your children are adequately supported.
A variety of factors come into play when determining which spouse must provide child supports payments, and how much these payments will be for. These factors include the amount of income that each spouse is earning, who has custody of which children, the nature of the custody arrangement, and the unique needs of each child.
Example of the Complications that Can Arise in Dividing Property
As above, how to divide property fairly and in accordance with the law can be a tricky matter. The decision Remmem v. Remmem, 2014 BCSC 1552 (CanLII) is an example where four different issues arose relating to the division of property, and spousal and child support, none of which are simple from a legal or accounting perspective. The issues included:
- Whether the value of a depreciating piece of equipment (a boat) ought to be included or excluded as family property;
- Whether the proceeds of a property purchased pre-marriage that were used to purchase joint property ought to reduce the exclusion amount arising from the sale of the first property;
- The amount of income attributable to each spouse for support purposes; and
- The amount and duration of spouse support.
A good family lawyer will help make the legal arguments necessary to ensure that the most favourable result is achieved, and to provide guidance in retaining accounting experts if it is warranted.
Speak to Donald B. Phelps Law Corporation for a Divorce Lawyer in Vancouver
If you are going through a divorce, our lawyers can provide the family law expertise you are looking for. We can protect you financially by advancing your legal interests. Contact us to review your unique situation. We can contact your spouse’s counsel and seek to negotiate a fair divorce settlement. In Vancouver, our divorce lawyers are available at 604-736-3722.