2,443
edits
Difference between revisions of "Dividing Property and Debt in Family Law Matters"
Jump to navigation
Jump to search
m
Dividing Property and Debt in Family Law Matters (view source)
Revision as of 19:48, 19 April 2013
, 19:48, 19 April 2013→Putting the plan into action
Gayla Reid (talk | contribs) |
Gayla Reid (talk | contribs) |
||
| Line 38: | Line 38: | ||
<blockquote>To divide property and debt under the ''Family Law Act'', you first have to figure out whether you're a "spouse" as defined by s. 3(1)(a) or 3(1)(b)(i). You must either be married or have lived with your partner in a marriage-like relationship for at least two years.</blockquote> | <blockquote>To divide property and debt under the ''Family Law Act'', you first have to figure out whether you're a "spouse" as defined by s. 3(1)(a) or 3(1)(b)(i). You must either be married or have lived with your partner in a marriage-like relationship for at least two years.</blockquote> | ||
If you're not a spouse, ''stop'' and read the discussion | If you're not a spouse, ''stop'' and read the discussion in the introductory section of this chapter,[[Property & Debt in Family Law Matters#Property claims and people who aren't spouses | Property & Debt in Family Law Matters]]. It describes how people who don't qualify as spouses divide property under the common law relating to trusts and equity. | ||
'''Step Two''' | '''Step Two''' | ||
<blockquote>Next you need to look at any ''cohabitation agreement'' or ''marriage agreement'' that you may have signed earlier in your relationship to see whether it talks about | <blockquote>Next you need to look at any ''cohabitation agreement'' or ''marriage agreement'' that you may have signed earlier in your relationship to see whether it talks about property or debt.</blockquote> | ||
If you have an agreement about property, ''stop''. Section 94(2) says that you cannot apply for a division of property if there's a written agreement about property or debt until that agreement is set aside. | If you have an agreement about property, ''stop''. Section 94(2) says that you cannot apply for a division of property if there's a written agreement about property or debt until that agreement is set aside. | ||
| Line 50: | Line 50: | ||
<blockquote>Next you have to check that you're making your claim within the ''time limits'' set out in s. 198(2). Married spouses must bring their claims for the division of property and debt within two years of the date of their divorce or a declaration declaring their marriage a nullity; unmarried spouses must bring their claims within two years of the date of their separation.</blockquote> | <blockquote>Next you have to check that you're making your claim within the ''time limits'' set out in s. 198(2). Married spouses must bring their claims for the division of property and debt within two years of the date of their divorce or a declaration declaring their marriage a nullity; unmarried spouses must bring their claims within two years of the date of their separation.</blockquote> | ||
If you're outside the time limits, ''stop'' | If you're outside the time limits, ''stop''. Talk to a lawyer about whether you're within the limitation period to ask for an interest in property under the common law relating to trusts and equity. | ||
'''Step Four''' | '''Step Four''' | ||
<blockquote>Now you have to figure out whether there's ''another court'' somewhere outside of British Columbia that has the authority to make an order affecting you, your spouse and your property. Most of the time the answer to this question will be no, | <blockquote>Now you have to figure out whether there's ''another court'' somewhere outside of British Columbia that has the authority to make an order affecting you, your spouse, and your property. Most of the time the answer to this question will be no. However, if:</blockquote> | ||
:*you and your spouse lived somewhere else for a long time, | :*you and your spouse lived somewhere else for a long time, | ||
| Line 88: | Line 88: | ||
<blockquote>For ''excluded property'' and ''personal debt'', what you need to know is:</blockquote> | <blockquote>For ''excluded property'' and ''personal debt'', what you need to know is:</blockquote> | ||
::*What was the value of each asset on the date you began to live together or got married, whichever | ::*What was the value of each asset on the date you began to live together or got married, whichever came first? | ||
::*For property acquired during the relationship, when did you acquire each asset and what was it worth when you received it? | ::*For property acquired during the relationship, when did you acquire each asset and what was it worth when you received it? | ||
::*What did you do with your property during your relationship? Is it still around? Did you sell it and buy something else? | ::*What did you do with your property during your relationship? Is it still around? Did you sell it and buy something else? | ||
| Line 98: | Line 98: | ||
::*What is the value of each asset now? | ::*What is the value of each asset now? | ||
::*Is there any property that was bought after separation with family property? If so, what is the value of those assets? | ::*Is there any property that was bought after separation with family property? If so, what is the value of those assets? | ||
::*What are the debts owed by you, by your spouse or by both of you, and how much is owing now? | ::*What are the debts owed by you, by your spouse, or by both of you, and how much is owing now? | ||
::*If new debt was incurred after the date of separation, was any of it incurred to pay for family property? It so, how much new debt was spent on family property? | ::*If new debt was incurred after the date of separation, was any of it incurred to pay for family property? It so, how much new debt was spent on family property? | ||
| Line 105: | Line 105: | ||
<blockquote>Now that you've got the numbers worked out, you have to think about whether an ''equal division'' of family property and family debt would be "significantly unfair", bearing in mind the factors listed in s. 95(2). If it wouldn't be significantly unfair, then split the family property and family debt equally and go on with your life. If it would be significantly unfair, then you've got to figure out what a fair split looks like and I wish you the best of luck sorting this out in a speedy manner.</blockquote> | <blockquote>Now that you've got the numbers worked out, you have to think about whether an ''equal division'' of family property and family debt would be "significantly unfair", bearing in mind the factors listed in s. 95(2). If it wouldn't be significantly unfair, then split the family property and family debt equally and go on with your life. If it would be significantly unfair, then you've got to figure out what a fair split looks like and I wish you the best of luck sorting this out in a speedy manner.</blockquote> | ||
<blockquote>Finally, you have to think about whether there's a reason to share in some or all of the ''excluded property''. Excluded property can be divided if there's property outside of British Columbia that ought to be family property but can't easily be divided or if it would be "significantly unfair" not to share excluded property bearing in mind the factors listed in s. 96(b). If there's no reason to share excluded property, carry on. If it there is a reason to share that property, then you've got to figure out what a fair division looks like; good luck.</blockquote> | <blockquote>Finally, you have to think about whether there's a reason to share in some or all of the ''excluded property''. Excluded property can be divided if there's property outside of British Columbia that ought to be family property but can't easily be divided, or if it would be "significantly unfair" not to share excluded property, bearing in mind the factors listed in s. 96(b). If there's no reason to share excluded property, carry on. If it there is a reason to share that property, then you've got to figure out what a fair division looks like; good luck.</blockquote> | ||
==Orders for the division of property and debt== | ==Orders for the division of property and debt== | ||