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

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  #11  
Old 10-20-2012, 08:11 AM
Mess Mess is offline
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Quote:
Originally Posted by arabian View Post
My advice would be not to nit-pic this issue. You were married for a very short period of time and in my opinion it is not worth pursuing..
Where in his post do you read that he was married for a very short period of time?

c800957276, you seem to be confusing different issues.

There can only be one matrimonial home (usually; if you own a cottage, that may be included.) When you married, it became the matrimonial home. Therefore the value should not be included in her NFP from before marriage. So neither of your assets at the time of marriage should include any of the value of this home. For example, if you owned a home 100% at the time of marriage and it became the mat home, you would not claim this as part of your marriage date NFP. If the 1/3 value is showing on her pre-marriage NFP, this is an error, or she is not interpreting the home as "marital" because of the joint ownership with family and the short time you lived there. Either version may be argued.

When the home was sold, it ceased to be an asset. It doesn't matter what happened to the money or whether it was co-mingled or not . Otherwise it doesn't matter what happened to the money. She can spend it on blow and male hookers, it does not change a thing in your separation date valuations.

After that house was sold you bought another house. It doesn't matter if she put money from the sale of the previous house into this home or not. It doesn't matter if she borrowed the downpayment and paid it off later. It doesn't matter how much either of you put into this home. It is the matrimonial home and you split the value 50/50.

From the information you give, you do not have an issue. You would not under any of the circumstances you describe put any of this value on your NFP. First, because it wasn't yours on the date of marriage. Second, because mat homes do not go in the marriage date NFP. Third, because the home was no longer owned on the date of separation. So it has nothing to do with your NFP.

The only possible issue is whether she is including the 1/3 value on her marriage date NFP or not. Personally I would not see the point in pursuing that as an issue unless she were nit-pickng some financial point of yours.
  #12  
Old 10-20-2012, 08:25 AM
standing on the sidelines standing on the sidelines is offline
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[QUOTE=Mess;112145]Where in his post do you read that he was married for a very short period of time?
[QUOTE]
he put in another thread that he was married for 7 years.
  #13  
Old 10-22-2012, 08:39 AM
c800957276 c800957276 is offline
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Quote:
Originally Posted by Pursuinghappiness View Post
I'm not sure I understand this.
I would have thought he would have had a case if she's got those funds separated from everything else and not listed on her financial statement.
She's got these funds listed as her equity before marriage, not as family property.
  #14  
Old 10-22-2012, 09:12 AM
HammerDad HammerDad is offline
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Quote:
Originally Posted by arabian View Post
Wow. If this were a female poster the responses would definitely be different.
No, my answer would be the exact same.

I don't like what the OP is suggesting, I never even bothered responding to his post about his ex's law suit claim as I rolled my eyes and moved along.

I simply put what I believe to relevent. The 1st house became the matrimonial home when they married and resided there notwithstanding that the ex was one of three owners. So, he'd be entitled to a portion of the proceeds as a spouse.

I could suggest that if this was a female poster and they were asking for SS you'd be all about how to get as much as they could.....but that is just a matter of perspective.

IMO, given how much the OP may stand to gain vs how much it would likely cost him to try and have it included, I doubt there is much value there, so I'd pick my battles and move along. If anything, I'd leverage including the funds against other matters more important to me.
  #15  
Old 10-22-2012, 11:20 AM
OrleansLawyer OrleansLawyer is offline
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Quote:
When you married, it became the matrimonial home.
This is correct.

Quote:
Therefore the value should not be included in her NFP from before marriage. So neither of your assets at the time of marriage should include any of the value of this home.
This is not correct. While the home was a matrimonial home, because it was sold (or otherwise disposed of) prior to separation, the value of the home on the marriage date may be included as marriage date assets.
Case law - CanLII - 1999 CanLII 787 (ON CA)

Quote:
It doesn't matter if she put money from the sale of the previous house into this home or not.
This is correct.

Quote:
She's got these funds listed as her equity before marriage, not as family property.
This is the correct treatment of the money. Keep in mind, she can only claim her actual interest in the home's equity, not the entirety of the property, if she shared ownership.

Quote:
But if your ex used the funds from the sale of that house to purchase the existing house, which is the matrimonial home, then she co-mingled the assets and they would likely be fair game.
While this is true for excluded property, it is not the case for marriage date assets. This is dealt with in the case law cited above.
  #16  
Old 10-22-2012, 08:12 PM
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Quote:
Therefore the value should not be included in her NFP from before marriage. So neither of your assets at the time of marriage should include any of the value of this home.
OrleansLawyer - This is not correct. While the home was a matrimonial home, because it was sold (or otherwise disposed of) prior to separation, the value of the home on the marriage date may be included as marriage date assets.
Case law - CanLII - 1999 CanLII 787 (ON CA)

I debated this going to a new thread - or more so being very similar to what is being discussed in the OP's circumstance - I left here to add to this thread - I hope this was right:

I am sorry but this has me real baffled, read this limnk several times.....not a good day but if understood, this really is significant..... In simple terms:

If the MH at the date of marriage is sold (which otherwise would meet the exception in that the value of the MH shall allways be divided 50/50) but is this correct??? A MH on the date of marriage which would otherwise fall under the rules for a MH, no longer meets the condition, of the MH, and thus the rules that apply to MHs, once it was sold during the marriage? The proceeds from the sale of this first home became the property of the husband as he was the 100% owner and finally, 100% of the value goes to the husband at least on his net family property calculations?

So my question is: The home which this couple bought together prior to, but was owned on the date of marriage, is the MH and as such, then split 50/50 as to the value of this home on the date of marriage regardless of who paid what of the downpayment and later of the mortgage to pay it off. If this is understood, when the house which was the MH on the date of marriage would be sold during the marriage - the cash proceeds no longer hold the special treatment that the MH offers?

This has been brought up softly in the past, What if the proceeds from the first home was used to buy a second then a third all increasing in value but this third house was sold for (Say $500,000), for the purpose of downsizing, the final home was then purchased for $300,000. How would the remaining $200,000 be treated? Would it loose the MH status thus allowing the return of funds as verbally agreed prior to using the money from which would have otherwise been excluded money (arising from a lump sum payment as a result of my accident/injury years earlier) to pay off the mortgage, eliminate the high interest rates and aside form the ex now developing admesia to (not only this but every single financial detail of our 25 year marriage), this agreement we had before hand, which was to return the money to my retirement savings when either the house was sold and downsized or through increased income which never occurred.

The money trail is really clear from the disability money which was to go to my retiirement savings (as had each bulk non-income payment came my way as a result of my accident/disability over the last twenty years - went to fund my retirement) but now went to the final mortgage - temporarily as agreed before the money transfer. A year later the house was sold and downsized and she returned the money to my seperated retirement savings account and in fact she put the entire sale proceeds into my seperate account. Is there any claim to the return of at least the amount of our original agreement?

Is this what the posted CANLII link implies as far as how the teatment of the MH is concerned, how it was bought, sold, re-invested in the next home which would then become the new MH and finally should it be sold - the final home that was occuppied becomes the actual MH at seperation?
  #17  
Old 10-23-2012, 09:24 AM
OrleansLawyer OrleansLawyer is offline
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To quote paragraphs 21-23 from the decision, with some emphasis,

Quote:
[21] In this case, at the time of separation the Maurice Street
property was not ordinarily occupied by the parties as their
family residence. The fact that it had at one time prior to
separation been so occupied is not enough to bring it within the
legislative definition of matrimonial home.
[emphasis added by OL]

[22] I can find no policy basis to support the opposite
conclusion for the Maurice Street property. The policy
imperative of the legislation is clear: in calculating net family
property a matrimonial home is to be treated differently from
other property owned at the date of the marriage.

[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.
[Emphasis added by OL] Either could be attacked for creating anomalous and unfair results inconsistent with the
fundamental objective of the legislation. Or each could be
defended as in some measure achieving the objective of treating a
matrimonial home differently in the net family property
calculation. Hence there is no policy victory achieved by
including the Maurice Street property within the definition of
matrimonial home in calculating net family property.
Quote:
OrleansLawyer - This is not correct. While the home was a matrimonial home
To contradict myself (or, more politely, to clarify):
The property, had the parties separated while they occupied it, would have been a matrimonial home. On the facts, they did not. It was disposed of prior to the separation. It is, therefore, an asset like any other. Whether that asset is property, investments or herds of chickens is held to be immaterial.
  #18  
Old 10-23-2012, 12:39 PM
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I don't believe the case cited is entirely analogous to the OP's situation.

If Betty owned a home worth 100k on date of marriage and the couple lived in the same home until divorce, this value would be excluded from her marriage date NFP.

If the home was sold and another home bought for 100k (nothing gained or lost) then according to your reasoning, the original home would now not be considered the marital home, and the value would be included in her NFP.

In the second case, nothing really changed except their address. They consistantly lived in one marital home worth 100k. Because they moved, suddenly Betty has a marriage date NFP that is 100k larger. This in turn drastically changes the equalization.

I do not believe this scenario is supported.
  #19  
Old 10-23-2012, 12:51 PM
OrleansLawyer OrleansLawyer is offline
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Quote:
If Betty owned a home worth 100k on date of marriage and the couple lived in the same home until divorce, this value would be excluded from her marriage date NFP.

If the home was sold and another home bought for 100k (nothing gained or lost) then according to your reasoning, the original home would now not be considered the marital home, and the value would be included in her NFP.

In the second case, nothing really changed except their address. They consistantly lived in one marital home worth 100k. Because they moved, suddenly Betty has a marriage date NFP that is 100k larger. This in turn drastically changes the equalization.
With respect, I believe this situation is exactly what is discussed in the case. If Betty and Bob move next door then Betty's marriage date claim makes a jump.
  #20  
Old 10-23-2012, 01:05 PM
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Quote:
Originally Posted by OrleansLawyer View Post
With respect, I believe this situation is exactly what is discussed in the case. If Betty and Bob move next door then Betty's marriage date claim makes a jump.
I agree. The jurisprudence provided could be applied to this matter at hand. There is other jurisprudence (case law) which could be raised in support of the argument as well that come from different angles that may be appropriate as well.
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