Pension Issues and Divorce

If the divorce proceeding is already happening and you do not have a prenuptial, post nuptial, or any other agreement with your spouse outside the divorce proceeding that shields your business from the effects of the divorce, chances are your business may have already been listed as part of the marital or family assets that will be subjected to distribution between you and your spouse.

It is advisable to consult your lawyer or let your lawyer represent or negotiate on your behalf about that matter instead of doing it by yourself.

Arbitrary dissolution or cessation of the business during the divorce process may be construed by your spouse, the mediator, or the judge, as bad faith on your part which may negatively impact the outcome of the distribution of assets in your divorce.

Future inheritances are not taken into account when dealing with the financial aspects of a divorce, but if it is expected that the person making the bequest will die in the near future, and if the inheritance is likely to be substantial, it may be.

You can only sell the matrimonial home with the consent of both spouses.

Under Ontario Law, marriage is considered an equal partnership and it follows that when a marriage comes to an end, the law requires an equal division of the property. The general rule is when a marriage ends, the value of all property acquired during your marriage and maintained through the separation should be divided between equally between the parties.

New rules for pension division upon the breakdown of spousal relationships came into force in Ontario as a result of amendments to the Ontario Family Law Act and Pension Benefits Act. Pursuant to the Family Law Act, the imputed value of married spouses’ pension assets constitutes property. Married spouses who decide to end their marriage are legally entitled to an equalization of pension assets and other property that they have amassed together during the marriage. If you are contemplating separation or divorce in Ontario, it is critical to receive legal advice about the division of pension assets in order to ensure you understand and protect your rights.

The new rules in Ontario for pension division apply to all spouses whose relationship has broken down, unless a court order, family arbitration award or domestic contract provides otherwise. Under this new regime, pension plan members and their spouses may apply to the plan’s administrator for a statement of the imputed value of each spouse’s pension benefits, deferred pension or pension. The pension administrator will first calculate the total value of the pension up to the family law valuation date. The administrator will then calculate what portion of the preliminary value of a pension is attributable to the period of the marriage, i.e. the imputed value of a spouse’s interest in a pension plan.

Once the value of pension is calculated, the value will be included in the pension holder’s net family property, along with his/her other assets, for the purpose of calculating the equalization payment. After the equalization payment is calculated, up to 50% of the value of the pension may be transferred from one spouse to another in order to satisfy the equalization payment in whole or in part.

Contact Gelman & Associates to learn how experienced, forward-thinking, family law lawyers can ensure your pension entitlements are protected during separation or divorce. Call us at (844) 736-0200 or contact us online for a confidential initial consultation.

There are many ways for you to keep your inheritance separate from your spouse, such as saving all proof, like photos and records, that show that the estate was intended for you alone.

It is illegal to hide money or assets from your spouse in the case of a divorce.

The best way to protect your business during a divorce is to designate it as separate property in a prenuptial agreement. Your pre-nuptial agreement will serve as a protection because it ensures that your business is still a separate entity no matter how much your spouse contributes.