Matrimonial home division?

[thechamp]

New to site really found it extremely helpful and much appreciated the good info so first and foremost thanks to all the contributors...

So not a fan of long winded posts. To complicated in my oppinion.

So, married 22 months. From marriage until seperated date. I stayed in home , home I bought pre marriage, only person on title or mortgage..I am proposing to buy out of increase of value and reduce of mortgage from move in date till seperation. 5 year's total. She wants the additional equity I built up and also was gifted 30k for downpayment from terminal parent. Either way I am offering half of the value increase since move in date even though I paid for everything but feel we contributed in life when together...How do I keep her from getting an additional 30k from a downpayment from my passed parents and the 4 years of payments I made all on my own ( was not easy) , I understand it's the matrimonial home.. but just looking for options to protect what I brought into the marriage as she is trying to take everything...
Any experience or tips in this area .. Remember I am in Alberta would be appreciated. Looking forward to more info on all topics ...Ah shoot it's a long post lol ironic

[ifonlyihadknown]

My understand is that the matrimonial home is always split 50/50, even if you owned it pre-marriage. I hope I'm wrong but you may have just lost 1/2 your house equity.

[Janus]

So, married 22 months.

That is a short marriage. The onus would be on you to show that an equal division is unfair, but that could likely be shown.

I am proposing to buy out of increase of value and reduce of mortgage from move in date till seperation.

That is obviously the minimum amount. I presume you mean that you will equalize that value. So if the house has gone up in value by $12,000 and the mortgage was reduced by $8000 then you owe her $10,000.

She wants the additional equity I built up and also was gifted 30k for downpayment from terminal parent.

What additional equity? Something beyond the 30k?

Note that while it is a short marriage, it is still a marriage, and the matrimonial home is sorta hers. You are likely going to have to offer something more than the minimum amount. An extra 15k to save the equity you brought into the marriage seems reasonable.

Anyhow, you are going to use this, section "e" in particular:

Variation of share
(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,

(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;

(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;

(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;

(d) a spouse’s intentional or reckless depletion of his or her net family property;

(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;

(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

(g) a written agreement between the spouses that is not a domestic contract; or

(h) any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property. R.S.O. 1990, c. F.3, s. 5 (6).

So, 5 years of marriage would mean that she would get half the home. You are at about a third of that, so offhand I would say that she now owns a third of half a share of the pre-marriage equity in the home, or about a sixth. Judges make up their own math though, which is why I think settling might not be a disaster.

[arabian]

Alberta has a matrimonial property act. If you have a freebie 1 hr legal consult on your employment health and benefit plan it would be worth your while to seek legal counsel. Keep in mind that most people on this forum are from Ontario.

https://albertacourts.ca/docs/defaul...married_12.pdf

[Tayken]

That is a short marriage. The onus would be on you to show that an equal division is unfair, but that could likely be shown.

Agreed. A good lawyer could easily deal with this matter. Quite a common situation in Southern Ontario. Especially with the home prices skyrocketing. The Toronto, Peel and Durham courts are jammed with similar matters.

If you were in Southern Ontario I could recommend 10-15 lawyers who could nail this down and fast for you.

[OrleansLawyer]

That is a short marriage. The onus would be on you to show that an equal division is unfair, but that could likely be shown.

The Family Law Act states that unequal division applies to a period of cohabitation that is less than five years.

only person on title or mortgage

Talk to a family lawyer about limitations periods. Consider waiting six years post-separation to see if their claim extinguishes by limitations. Consider negotiating in good faith in the mean time, hopefully reaching an agreement without having to go to court and having both parties pay more than the value of the claim in costs.

[Janus]

The Family Law Act states that unequal division applies to a period of cohabitation that is less than five years.

Some situations to flesh out what that means...
Assume A owns the house, and that B is not on title.

Situation 1: They cohabit for 8 years, do not get married
result: House does not get split. A gets to keep 100% of the precohabitation value of the house. Onus on party B to prove a share of post-cohabitation increase.

Situation 2: They cohabit for 7 years, get married for a month and realize that it is not working out and separate.
Result: House is split 50-50, no unequal split possible because it is more than 5 years

Situation 3 They are married for 4 years, no premarriage anything.
Result: Unequal division of house possible, onus on party A to prove it

Situation 4: They are married for 2 years, cohabitated for 4 years.
Result: House is split 50-50, no unequal split possible

Is the above correct?

Oh, and for fun...

Situation 5: They live together for 15 years, split for two yeasr due to a big argument, then are married for 3 years, then separate.
Result: My guess is that a judge would just order 50-50, but technically would it be open to an unequal split?