KitchenTableTalk – Question No.2

The second most frequently asked question I am asked by any family law client is, “Just how much is my spouse entitled to in our divorce?”.

It’s a great question, although one with some legal twists and turns. I begin my answer by informing my client about the general legal principle (sometimes referred to as a general presumption) which applies when parties separate and divorce. Namely, both parties are entitled to an equal division of family assets.

Of course it helps to first have an understanding of what is a family asset. A family asset is typically any asset which is, or has been, used or enjoyed for a “family purpose”. This usually includes the family home, vehicles, recreational properties, etc. However, some assets have been defined as family assets regardless of any family purpose, these include such items as RRSP’s, and employment pensions.

So now that you know what are the usual family assets, there are some notable exceptions to the 50/50 split of family assets. One of the most important is the duration of the relationship, not necessarily just the length of the marriage, since it could encompass a period of co-habitation.

For what are considered very short marriages, ie less than five years, courts will consider the respective contributions (including financial, household, and child rearing contributions) of each party, before deciding an equal split is fair. For example if one party (spouse A) had amassed significant assets before marriage, in the absence of equivalent financial contributions from the other spouse (spouse B), or other household or child rearing responsibilities, there is a possibility that a court could decide to re-apportion the assets in favour of spouse A.

All of this means that whether you identify as spouse A or B you should not simply agree to any specific division of family assets, without first receiving some legal advice from an experienced family lawyer. Otherwise, it could become the costliest mistake you’ll ever make.