Divorce is emotionally demanding. But it is important to think of what lies ahead instead of getting upset about the present, especially if you have children. ‘What will happen after the relationship ends?’ and ‘who will get what?’ are essential questions that need answers. Apart from the division of property, the rights and responsibilities of each partner is also divided by law to avoid future conflicts. Some couples deal with it quickly and easily, especially in case of uncontested divorce, whereas others find it messy and complicated.
In Canada, laws regarding the division of marital property are handled differently by various provinces. To help give you a basic understanding of the rights and responsibilities of partners after divorce in Ontario, experienced family lawyers in Mississauga have come up with this post.
Division of Property, Rights and Responsibilities After Divorce
The family home, where the couple resided together when married, is an important property to which each partner has an equal right. In case of a divorce, the value of the home is divided equally regardless of whose name is on the deed. Other important points of division of matrimonial property are:
- You both have the right to stay in the family home. However, if you cannot agree on who should stay there, you can get the help of a family lawyer or mediator to solve the problem.
- Neither of the partners can sublet, rent, sell or mortgage the family home without the other partner’s permission.
- If you have children, the partner who gets primary custody is most likely to be the one who stays in the family home with children.
When dividing other properties accumulated during your marriage, like real estate, money and disability benefits, they should be divided equally. However, if your spouse owns property that is worth more than yours, then they must give you half the difference in value between the property they own and what you own. That said, if you are unable to come to a decision about property division, there is a time limit of six years after separation and two years after a divorce to make a claim in court.
According to legislative changes to the Family Law Act and the Pension Benefits Act that came into on January 1, 2012, new rules will apply for valuation and division of pension assets if one of the spouses is a member of an Ontario pension plan.
If the couple separated on or after January 1, 2012, or before that date but have not yet resolved their property settlement, the pension plan members can now pay their former spouse some or all of the settlement from the pension plan itself.
Debts and Loans
Apart from assets, a couple getting a divorce must also settle its liabilities. Each spouse is responsible for paying the debts and loans in their name. Only liabilities in both names are shared equally by each partner. When calculating how to equally divide property at separation, the amount of debt you owe is subtracted from the amount of your property value.
After divorce, it is still the responsibility of both spouses to keep their children safe and care for them. Parents, in spite of not living together, are responsible for supporting their children under 18 and those over 18 who are unable to withdraw parental custody because of a disability. Now the question becomes who will take care of the children?
If the spouses can work things out, they can write out an informal parenting plan. This includes who makes major decisions regarding the kids, when each parent spends time with them and how much money each should contribute to child support and education. A parenting plan can be part of a court order or separation agreement. However, since it is an informal agreement, it can be difficult to enforce.
If both spouses differ on child custody and support, they can let a judge decide. They may ask for an assessment by a social worker, psychologist, psychiatrist or clinical investigator. The person making the assessment will talk to both parents, your children, and sometimes others. They will then prepare a report recommending which parent should have custody.
Spousal support is not an automatic right of divorce and not every spouse is entitled to receive it. There are three grounds necessary to establish entitlement for spousal support. They are:
- To fulfill a contractual agreement, implied or expressed, that the spouses were responsible for each other’s support;
- To compensate a spouse for hardships or opportunities lost due to the marriage or divorce; or,
- On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay.
The amount and duration of spousal support are based on the length of marriage and how long they lived together before marriage. The Spousal Support Advisory Guidelines include two basic formulas: without child support and with child support.
Where there is no child support obligation, the amount ranges from 1.5 to 2 percent of the difference between the spouses’ gross income for each year of marriage up to a maximum of 50 percent. On the other hand, the spousal support amount with child support obligations is based on the Individual Net Disposable Income (INDI) for both parties.
The formula to calculate the amount for the recipient is:
- Guidelines Income amount – notional child support – taxes and deductions + government benefits and credits
The formula to calculate the amount for the payor is:
- Guidelines Income amount – child support – taxes and deductions + government benefits and credits
To learn more about the amount and duration of spousal support, go through the guidelines.
The division of property, rights and responsibilities in a divorce can be quite complicated. The more assets and debts a couple has, the more complex the process becomes. This blog post gives you a basic understanding of what happens after a marriage ends and what spouses should plan beforehand to ensure there are no future conflicts. Nevertheless, it is advisable to consult a local divorce lawyer to guide you through the process and ensure that your rights and property are protected.