What Am I Entitled To In A Divorce In Alberta?
Divorce – it’s something that more than half of all marriages end up in and if you are one of them, you may be wondering what you’re entitled to in a separation or divorce in Alberta. According to the Matrimonial Property Act, the Court must divide any and all matrimonial asset(s) fairly. Typically, this means that the Court divides the matrimonial assets equally between spouses.
In Alberta, the Matrimonial Property Act is the governing law that states how assets and debts must be divided between spouses. It also states that both spouses will live in the marriage property for a period of one year (this is known as “statutory accrual”) before they can be eligible to claim their share of the property.
If you are going through a divorce, you may have some confusion about what is included in the matrimonial assets and how it will be divided between the spouses. Here, we’ll break down common asset types that are considered to be a marital asset and discuss how they should or could be divided in your divorce.
What Is Considered A Matrimonial Asset During a Separation Or A Divorce in Alberta?
Matrimonial assets, in a broad sense, include real properties, personal properties and rights acquired between the date of marriage and the application for division such as interests vested in joint bank account or life insurance policies for instance. Read below for more specific example of marital assets:
- Assets acquired during the marriage,
- Money or property payable after the end of the marriage,
- All forms of legal title including cash, land and vehicles,
- Not debts and liabilities relating to only one spouse,
- Includes pension benefits accrued during marriage,
- Includes gifts and inheritances given to one spouse with the expectation that they will benefit both spouses equally, and
- Includes any other assets that were intended for joint use, such as investments or bank accounts.
In many cases, the matrimonial assets belong to only one spouse and they do not consider them as such, but in the case of a divorce claim, this can come under scrutiny. The value of matrimonial assets is decided by the Court for the best interests of the couple involved.
What About Assets That Were Bought Before The Relationship?
Contributions that are made at the beginning of the relationship are considered separately from contributions made during the relationship. Contributions made during the relationship are divided into two main categories being financial contributions and non-financial contributions. The first category is a little easier to understand.
To begin with, financial contributions are normally divided 50/50 because they are given with the expectation to be shared with someone. Contributions are considered financial if they affect the financial situation of the couple positively. As such, if one person in the relationship earns less than the other person, it is possible that this person will be deemed to have made other contributions to their partner and in turn, should be able to claim a share of their partner’s assets.
Non-financial contributions tend to be more subjective in nature as they are harder to quantify. They include things like staying at home to care for children or for a household. Financial contributions are contributions such as money, property, and value. Non-financial contributions are acts like help and support.
Marital assets are items and property that a couple lives on or earns during their marriage. In Alberta, marital property is divided between husband and wife during a separation or divorce. The settlement is based on several factors, however most often the judge will decide that each party’s contribution of money, talent and effort while married should be taken into consideration when a decision is made to divide their assets.
What About Assets That Are Considered Fair Game?
Is your house marital property? Are your personal belongings, investments, pension plan and RRSPs fair game for division during a divorce? Anything owned by either of you is fair game. Your house and car are probably not fair game if they were in your name with your name only on the mortgage.
However, if you bought the car or house with both your names on the loan, it could be divided between you. Generally, though, only property acquired during the marriage is marital property. This includes gifts and inheritances received during the marriage that are added to your property (like a bank account).
Are There Tax Implications To Dividing A Matrimonial Home?
Divorce can be one of the most emotionally, financially and legally taxing situations a person can face. When one or both spouses earn an income there are a number of decisions that must be made to divide the assets accumulated during the course of the marriage.
There are many possible ways to quantify matrimonial assets, but all require a business valuation approach which requires tax implications to be determined. In Alberta, division of common law assets is relatively straightforward while division of assets acquired during marriage can be more complicated and require more time before any final decisions can be made.
Regardless of how an estate is divided, couples should always consult a knowledgeable lawyer or Certified Divorce Financial Analyst to ensure everything goes smoothly.
Does The Court Consider The Day-To-Day Contributions Of Each Party?
Is it fair to consider a spouse’s day-to-day contributions while dividing assets? It is true that in deciding what assets to divide, and how to divide them, while making decisions on behalf of the family, the Court will consider each spouse’s contributions to the marriage and family. The contributions can include looking after the day-to-day matters such as:
- Childcare, and
- Participation in family activities.
The Court can also look at roles assumed during the marriage, who earned more income or incurred more debt based on their work role during the marriage, what income was contributed to the earning of other income through childcare or domestic work (i.e. whether one spouse took on most of the parenting duties), individual financial circumstances and needs after divorce, and any specific instances where either party has acted as a stay-at-home-parent.
There’s no way to predict what the Court will do in your case. Make sure you have an experienced family law lawyer on your side – if your separation is amiable, you may be able to come to some resolutions through mediation.
In an ideal world, the division is equal, but this may not always be realistic depending on the marital finances and the nature of how it was acquired.
If you are getting a separation or divorce in Alberta, you are entitled to whatever is deemed fair by the courts. Unfortunately, there isn’t a clear definition of what is fair. In making this determination, your spouse’s income will be taken into account as well. That being said, there is no solid rulebook about how to go about dividing the assets fairly.