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How Is The Property Divided Transcript

Hi, I’m Lisa Gelman. Today, we’re going to be talking about marital family property and the division of such property. I just want to say, though, before we get started, it’s really important that you speak to a lawyer so you get your proper legal rights and don’t rely on things you’ve read outside or people you’ve spoken to. You really want to speak to a lawyer.

But before we get to the how the property is divided, we first have to determine whether you are legally married or not. If you are merely living in a common-law situation, then the statutes of Ontario don’t apply to you with respect to property division. That’s generally speaking. If you were married, however, then the statutes apply to you.

What we basically will do is figure out the value of all your property with your spouse or ex-spouse, and we’re going divide it equally. Before we determine what we put in that pot of property, let me just talk about four exclusions, which we don’t put in the pot to divide.

The first is inheritance. If you’ve ever inherited any money, as long as you’ve kept that separate from your spouse, that’s yours to keep, so that doesn’t get divided. If you’ve ever had a personal injury settlement, again, as long as that hasn’t been put in a pot together in a bank account together, that’s yours to keep.

If anyone’s ever given you something, but for your spouse or ex-spouse, again, that’s for you to keep. And finally, but for the matrimonial home, which is a whole another species, anything you bring into the marriage that you had the day you were walking down the aisle to get married, that’s yours to keep.

So but for those four exclusions, everything’s got to be divided equally. So I mentioned to you a minute ago that the matrimonial home is a bit different. The reason why it’s different is because this is one property that if you bring this into the marriage, not withstanding you owned it on the date of marriage, the second you get married, generally speaking, half that home becomes your spouse’s or ex-spouse’s.

The next thing we do is we need to value all your assets and all your spouse’s or ex-spouse’s assets, and you can either agree upon the value of these items on the date of marriage and the date of separation, or what you need to do is hire valuators to determine the value of these items.

Let me give you an example of one situation where we had to value something tricky. There was a specific 1950s Chevrolet that was alleged to have great value to it. We had to go out and find someone who specialized in this type of valuation to place a value on this car. Once we figure out the value of the property that you own on the date of separation and your ex or spouse owns on the date of separation, then we’ve got to divide it.

There’s one of two ways. The general way is that it’s equally divided. We will refer to that term as “equalization of net family property.” That usually is how it happens. However, there are examples of when we don’t divide your property equally. Judges have the discretion not to divide the property equally if you haven’t been married for at least five years.

Another example of when we don’t divide your property equally is if a judge finds that one of the spouse’s or ex-spouse’s behavior has been unconscionable. So, for example, I’ve had a case when one of my clients was addicted to gambling, and he unfortunately gambled away a few hundred thousand dollars of the family’s net property. The judge in this case found that it was unconscionable and decided not to divide the property equally.

Property division can be tricky or it can be really easy. You need to speak to a lawyer about the nuances of some of the laws as I’ve generally spoken today about property division.

I’m Lisa Gelman, and thank you for watching this segment on property division. If you want to know more about property division, please take a look at our website under the section all about property division.

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