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does will override divorce settlement

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  • does will override divorce settlement

    I bought my property on 2004 to which my husband has not contributed to. We have been living apart (in different countries) since 2001 but decided to go our separate ways in 2008. We have 17y yr old son. This house is his future. I am seeking for a divorce and am concerned he will take half the house. Would making a will and leaving the house to my son work?

  • #2
    The house IS half his already. I think that if you die, it becomes entirely his, although I suppose if you put in your will that your son gets your half in the event of your death, that could be contested. But if you have been living apart for so long and he hasn't made a claim to it yet, you could probably get him to sign off on his half. Especially if it's to benefit your son.

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    • #3
      No. Your son would only have a partial claim when you die.

      Until you are divorced your husband has a claim on the property. If you die while you are still married, even with a will he has a claim to half of the value of house.

      I am slightly unclear about your situation, but it sounds like you two have been physically separated since 2001. If I were you I would argue that this is the separation date, that the home was purchased 3 years after separation, it is not the matrimonial home, and the husband therefore has no claim. If he has never resided there then I cannot see how he can argue that it is the matrimonial home. Many people own several properties; the matrimonial home is the primary residence. In addition I would argue that any claim would be unfair enrichment.

      In Ontario a party must make a claim for equalization within 6 years of separation. You may run into some issues declaring a separation date if your husband contests the issue, but if you have been fully financially independent and living different countries since 2001 I think that you would be able argue for a separation date of 2001. This means that your husband would have no claim to your assets while you are alive.

      Again, if you are still married and you pass away, he would have a claim. You should deal with the divorce soon in order to have peace of mind.

      The first thing I would do is to simply make an offer to the husband to agree to a divorce, and that since you have been completely separate in finances for 12 years, to agree to no financial issues. For the purposes of negotiations I would not bring up the house or any possible issues, just ask to settle for a clean divorce. There is no point in putting ideas in someone's mind when you have been apart for so long.

      If your husband brings up any issues of financial settlement, then deal with it as it comes. For all you know he owns a house too, or several, so he may prefer a clean break as well.

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      • #4
        Check on CanlII.

        What is a matrimonial home? Was it used for family purposes? If it was not, then it was not a matrimonial home and it's value should not be considered in equalization.

        FN

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        • #5
          I bought this house while my husband was living abroad. It is under my name. He has never lived there with us and when we separated he was still living abroad. So no this is not a matrimonial home.

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          • #6
            SK
            As long as your money alone paid the down payment (or total price) then it is not a matrimonial home.

            FN
            Last edited by FreeNow; 02-24-2013, 11:20 PM.

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            • #7
              so does that mean he can't make any claims to the house?

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              • #8
                People make claims all the time that they can't back up. He can drag you into court, cause a lot of stress and legal costs, and in the end lose. You may or may not recover all of your legal costs. There is no law requiring people to act rationally.

                As I wrote above, your first step should be to make him an offer of a clean divorce, simply pointing out that there would be no money to change hands after all of these years. See what his response is.

                If he starts making an issue of division of property, that is the time to consult a lawyer.

                The basic answer to your question is, no he has no claim. That doesn't mean anything about how he will behave.

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                • #9
                  ok...thanks
                  what about child support...he has not supported us since the separation. My son is now 17...is there anything I can do and if so, would I be able to ask support since the separation in 2008

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                  • #10
                    SK
                    I already answered your question.

                    FN

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