15/05/2018 0 Comments
What Happens to Our Home When We Get Divorced?
There are many loose ends to tie up during and after a divorce that may seem endless and burdensome. Specifically, you may be wondering what happens to your largest shared asset; your marital home. The family home holds a special, emotional attachment to both parties and their children and it can be a devastating process to get rid of a memory-filled home.
From the perspective of a family lawyer in Waterloo, there are a number of ways to deal with such property. The most common methods are discussed here below.
Sell & Divide Proceeds
The most simple and common way to deal with your home is to sell it and divide the proceeds among the ex-spouses. This way both parties move on to a new home they can afford financially, and the amount of the sale proceeds are generally undisputable. However, the matrimonial home is treated with special rules that will determine how the value is divided. For example, if one party owned the home prior to marriage, that party cannot subtract the pre-marriage value from their calculation of their net family property. Rather, the entire market value at the date of separation must be included. There is an exception to this rule if the home has been sold before separation.
Sometimes one party is prepared to buy out the other party’s interest in the home. This can be a long and expensive process, typically with multiple appraisals to assess. The party who keeps the home must be certain about being able to pay-out the other (with the associated fees) and be able to continue to carry the monthly costs of the home.
A key factor to look out for is if you want to buy your ex-partner out to keep the home, your ex-partner may use your emotional attachment to the house as an advantage to negotiate for other assets or benefits. If the parties cannot agree on any part of a buy-out, the court can force a sale through the Ontario Partition Act.
For example, in Thompson v. Fitzjames, 2004 CanLII 48892 (ON SC), the husband forced the wife out of the matrimonial home so the wife brought an application for the partition and sale. The court outlined the following test: where the application to force the sale is vexatious, malicious or made with oppressive intent, the home shall not be sold. In this case, the court found no such intent and therefore ordered the partition and sale of the home.
Both Reside in the Home
Both parties have an equal right to stay in the matrimonial home and some individuals can live separate and apart from their ex-spouse while being under the same roof (e.g., living in different quarters in the home). For a separation or divorce to occur, there is no requirement to physically live at different addresses, though a separation date should be agreed upon. Some parties find that living at the same address works best for their children.
Right of Possession
In rare situations, the court will grant exclusive possession of the home to one party; this remedy allows one spouse to stay in the home while forcing the other spouse out. Usually, the situation in which sole possession is granted is extreme, such as in a case of domestic violence. The court will also consider if and how the best interests of the children would be affected, the financial circumstances of the parties, any prior written agreements, the availability of other accommodation and any violence towards the ex-spouse or children.
In Brown v Ramage, 2017 ONSC 2392 (CanLII), the mother applied for exclusive possession of the home as the primary caregiver of the child. Upon assessing the factors above, the court found that the familiarity of the matrimonial home and lifestyle was in the best interest of the child. Further, the court found that due to the mother’s income and expenses, she had little to no other options for alternative accommodations. Ultimately, the mother was granted exclusive possession of the matrimonial home however; she was restricted from selling it without written consent from the father.
Moving Without the Children
It is imperative to consider your intentions of custody of the children if you are the party moving out. It is in favour of the children to remain in their family home and not disrupt their lives so if you are seeking custody of the children, you may want to reconsider being the party that moves out. If you are moving out of the matrimonial home without the children, it may jeopardize your claim for custody. Speak to one of our family lawyers today to discuss the plan and intentions for custody prior to moving out to protect your claim for custody.
For a Family Lawyer in Waterloo, Call the Law Offices of C. Richard Buck
There are many important considerations when deciding how to move forward with the matrimonial home. Before leaving the home or signing any agreement, you should speak to an experienced family lawyer to ensure you are not dispensing any important rights you have.
For family law in Waterloo, call the Law Offices of C. Richard Buck. We can discuss the property rules with you and the best way to deal with your matrimonial home in your specific circumstances. Call us at 519-579-3400 today.