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Financial Issues This forum is for discussing any of the financial issues involved in your divorce.

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  #21  
Old 10-23-2012, 01:38 PM
ddol1 ddol1 is offline
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Mess, I think you worded the intent quite well, I remember some time ago we discussed this issue with the as you state, "a matter of course the MH which was upgraded with each new move thus increasing the value of the MH at seperation to whatever its value at seperation just the address changed". But what if one of those moves was to downgrade the size and value so as to pull out the equity before seperation that was not used to purchase the next MH.

OraleansLawyer and if I understand Tayken are concluding at least back to the date of marriage what the posted rulings are stating - that when the MH is soldthe house at that point ceases to be a MH and and that goes to the proceeds - Once any of the proceeds are then used to purchase a home that ultimately is deemed a MH at the date of seperation then MH rules apply - but there is no mention to the left over cash that was not flipped into the next MH......

This I have continued to search for some definative support that would allow or show a ruling on what is now the leftover cash? It doesn't meet the definition of a MH and is not to the original OP circumstance perhaps this issue here should now be in a different thread??

My lawyer has swayed on this issue but it comes down to what we can prove, case law and how much wieght "to the probablity of the truth by the evidence presented. OrleansLawyer has brought up some case law that, was very interesting at least to what I was able to comprehend.
  #22  
Old 10-23-2012, 01:47 PM
OrleansLawyer OrleansLawyer is offline
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The ratio from the case is that there is* only one matrimonial home, which is determined on the separation date. "Former matrimonial homes" are to be treated as other properties - such as former vehicles or former RRSPs.

Therefore, the value of a property that the married couple previously resided may be included as part of their marriage date assets.

Chasing the money into the (separation date) matrimonial home is relevant to excluded property, for example an inheritance.

* - unless there isn't.
  #23  
Old 10-23-2012, 03:47 PM
Mess Mess is offline
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If A ≠ B, then B ≠ A.

Let A = cash money brought into the marriage by party a.
Let B = Physical residence brought into the marriage by party b.

Quote:
23] To exclude from this exception a property which was a matrimonial home at the date of marriage but ceased to be at the time of separation is no less defensible than to include such a property as a matrimonial home but exclude from net family property the funds brought into the marriage by one spouse which were thereafter used to buy it. Either could be attacked for creating anomalous and unfair results inconsistent with the fundamental objective of the legislation.

The home and the funds brought into a marriage are either the same, or they are different, according to intent of legislation. The justice in this case seems to wish them to be both.
If a home is brought into the marriage and remains the marital home, the justice feels that exclusion of this value from marital NFP is consistant with the fundamental objective of the legislation.
If a home is brought into the marriage and is sold, the justice feels that exclusion of this value from marital NFP is inconsistant with the fundamental objective of the legislation.
Since inherited funds or funds from insurance settlements may be excluded if tracable, the concept of exclusion of funds from the sale of pre-marriage home is not problematic. The disposition of funds may be traced, or not. If not, then the same rule would apply as to funds from an inheritance.
The justice in this case is making an argument, although they may not realize it, that the value of a marital home should be excluded from marital NFP regardless of whether it is sold or remains the principle residence throughout the marriage.
The fundamental objective of the legislation is to treat the value of the marital home differently than other assets, otherwise the entire section of the FLA would not be necessary. The value that is brought into the marriage by the owner of home which becomes the marital home is treated differently according to legislation. The questions would be, why is this, what is the intent, and why should this intent disappear just because the home is sold?
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Old 10-23-2012, 05:31 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
If a home is brought into the marriage and remains the marital home, the justice feels that exclusion of this value from marital NFP is consistant with the fundamental objective of the legislation.
If a home is brought into the marriage and is sold, the justice feels that exclusion of this value from marital NFP is inconsistant with the fundamental objective of the legislation.
The justice is narrowing the breadth of the matrimonial home asset exclusion.

Quote:
The questions would be, why is this, what is the intent, and why should this intent disappear just because the home is sold?
Why:
When the legislation was drafted, a number of lobbyist groups had the ear of the provincial government. A major concern was the feminization of poverty, particularly through divorce. It was not uncommon for the matrimonial home to be the only substantial asset of a couple and, upon separation, if the home had been an inheritance or otherwise paid for prior to the marriage (usually by the husband), he would remain in the home and otherwise be able to maintain his standard of living while his (now ex) wife would be forced into poverty.

Intent:
The sharing of the value of the matrimonial home was intended to protect against the feminization of poverty through divorce. Furthermore, in a vein similar to the constructive trust developed by the supreme court, it gives value to the years a (traditional) wife may spend in her (traditional husband's) home.

Why should this intent disappear:
There are people who argue that the treatment of the matrimonial home in equalization is utterly inequitable, that it may lead to a windfall from one party to another - particularly given that it tends to be short term marriages that remain in the same home - and is generally a clumsy attempt at managing a broad social issue that has, in any event, produced no noticeable impact.

The narrow reading of legislation has come to mean that the equalization effect of the matrimonial home is either on excluded funds obtained during the marriage or on homes that were owned on the marriage date.
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