rights to the matramonial home

[ddol1]

I was wondering if there was anyone who had knowledge in the selling of the Matramonial home (paid off late 2004 using money from my injury payments that would be exempt under 4(2)3). Then in late 2005 the house was sold while we still married. We then moved to another city, downsized and after all the expenses we had $60K in the savings account.

I understand the rule of it doesn't matter who, how or why the money went into the matramonial home - it is shared equally upon seperation/divorce. I am trying, without success to find out what is the rule of the money that was not used to buy the new home.

Is it possible that the money not used to purchase the new home would then become "exempt" (it was redeposited in our seperate savings account were all the disabilty money went until we could get it deposited into RRSP's).

Thanks for your thoughts!

[HammerDad]

I have a feeling that as soon as the exempt monies were co-mingled into matrimonial assets (the home) they lost their distinction and will be subject to equalization.

[Mess]

Not quite clear on your circumstance, but look at it the following way...

You receive an inheritance or an insurance settlement of $1million, you put $100 towards the mortgage, does the remainder somehow become marital property? No, this would be absurd.

If there was money left over from your injury settlement that was put into an account specifically under your name, it should remain your money, separate from equalization. However you aren't clear about that, you state "our separate savings account".

I take it from there it went into a personal RRSP, not joint.

If it were me I would state that the amount was from my insurance settlement and was not a part of equalization. If the other party claimed otherwise I would put the onus on them to prove it.

It may be that if you exempt the amount your ex won't even bring it up. If they do, you state it is exempt and assert that they need to prove it is marital asset. Let them find case law to support it if they can and take it from there.

I wouldn't fret in the meantime or pay too much for a lawyer to research it unless it gets to the point you absolutely need to.

[ddol1]

Hi - I noticed that there were some points that were not really clear so:
I do have previous posts which goes into length about my health throughout our marriage - I was not able to manage my own affairs so much off and on then off again that we decided that the only way for us was to let my wife have signing rights for everything - this i have now learned is the same as Joint. It did get to the point where it was just the way it was and it just stayed that way - joint everything. The last four years or so - I especially needed her to manage everything as I entered a period where my mental health on top of my physical difficulties - memory loss/lapses, i had to stop driving for two of those years, my kids drove me to my medical appointments - there is more but I think I described the difficulties I have had to deal with all my life.

I think the other thing that was not clear to me was the left over sale proceeds of the house. I put the money in to pay off the mortgage from my insurance settlement and a year later the house was sold. We downsized and the 60K was left over - it was this money i was trying to figure out - once in the house the settlement money became joint - but when the house is sold and the money becomes "cash" again, put into the savings account which held all my settlement awards, can it revert back to "exempt status" as if it was never put there (into the matramonial home) in the first place?

Not sure if this is greedy (probably is - but i have been told over and over this is about retaining should belong to me for my future - money which the law says is exempt when divorcing - not about giving all I could to my wife as i have all these years...... I am reminded she is now not my wife but my STBX and I need to learn to "live" by a new set of rules).

What if the matramonial home was bought and sold four or five times and was sold before the valuation date and for this post, perhaps even after the valuation date years after the valuation date and the final sale price was say $40K more than the value assigned at the valuation date. This would mean there would be yat another 40K "removed" out of the home and would in affect become cash. Once cash would that money then be exempt as it would be in effect returning the settlement money back?

I have sat with a lawyer twice now - the issue of joint and being fully separate is or will be relaxed with my medical history and backup of my family doctor that i have been with the last six years since moveing to Kingston. He said it would be good to be able to tell where the money went (bank records, receipts, investment, RRSP's). When we did get lump payments I set the goal to have the money put into our retirement as we were not going to have any other pension.

Most went into my name directly but some went into hers - we always had the low or no income issue where i had no room to put any more rrsps into my name anymore - so for tax purposes we put some into my wife's rrsp too. It was looked at as a global family issue of figuring out how to save for our retirement, get as much tax relief as possable and the tax refunds went to pay off the house. The lawyer did say that usually if it went into her rrsp it is then a gift and belongs to her. What he understood of our circumstance and the records i managed to put together for the last 25 years I had a case for retaining my right to include the money from my injury claim which was deposited into her account.

In the end, regardless if I was on my back for 9 months at a time (did that 3 seperate times!) or during my better times wehen it took all my focus and energy to do what i was doing, my wife continued to pay the bills and manage the money - I could go on but I am leading to a completely new post reagrding this, lawyers and plain just not understanding...........it is so ostressful, she only makes it worse now and i just want it to end - the lawyer said that it could take another two years if things went the court route and he recomended i move out now. I am not sure about that - but for sure i am into another post so I shall stop right here!

I thank Mess for a great perspective on this - you have helped me so much on my different posts - you really have made a difference in my life, how to handle this divorce stuff has well kept me from - I don't even want to go there. So thank you Mess, you are a great part of this forum for both me and I am sure many others.