Matrimonial Home

Janibel

Janibel

New member
I found this very comprehensive article on what can be done with regards to the Matrimonial Home:


Matrimonal Home and Divorce or Separation

Matrimonial Home

The matrimonial home is anywhere the husband and wife resided during the marriage, regardless of whether it was a single-family home owned by the couple, a rented apartment, or a mobile home. Under the Family Law Act, the matrimonial home is always dealt with separately from other marital property within separation agreements and divorce decrees. Regardless of who owned the home at the beginning of the marriage, the matrimonial home is always divided equally, meaning that, upon the sale of the home, both spouses receive an equal share of the proceeds.

During a property division, the matrimonial home can be dealt with in any one of the following manners:

Immediately sell the home and divide the sale proceeds equally between the spouses

One spouse pays the other spouse half of the home's fair market value at the time of divorce and gains complete ownership of the home. Both parties continue to own the home jointly until a set event occurs.
​

Any of these methods may be appropriate, depending on the needs and desires of the respective spouses, as well as the circumstances surrounding the divorce.
Right to Possession of the Matrimonial Home

When undergoing a divorce, both spouses have an equal right to possess the marital home. Often times, one spouse is permitted to continue living in the home without purchasing the other spouse's share of the home. This is often the case in instances where one parent is granted child custody and is permitted to remain in the home, or if there has been an abusive relationship, restraining orders are involved, and the victim wishes to remain in the matrimonial home.

Maintaining Joint Ownership of the Matrimonial Home

If it is decided that one spouse should be permitted to remain in the home, there are essentially two options: the couple can continue owning the property jointly, or the spouse retaining possession can buy out the property interest of the other spouse. If the parties decide to maintain joint ownership of the home, they can do so until a set event occurs. Such events may include the remarriage of the custodial parent or the children reaching a certain age.

During the time that the custodial parent retains possession of the home, he or she is solely responsible for paying the mortgage and taxes, and is permitted to take tax deductions for any payments of principle made for the home.

Any major repairs made to the home are divided between the parties and, upon the final sale of the home, the party paying for such repairs during the duration of the joint ownership is entitled to be reimbursed for half of such expense upon the sale of the home.

Upon the execution of the previously agreed-to event, the home will be sold or purchased in its entirety by one of the spouses. If the parties decide to sell the home, the proceeds from the sale will be split evenly. If, however, one of the spouses wishes to continue retaining possession, that spouse may buy out the other spouse's share. This buy-out may be accomplished in any of the following ways:

Paying the other spouse the fair market value of the home

Refinancing the home
Trading the home for other property

Selling the Matrimonial Home

Sometimes, the best option is to sell the home immediately and split the proceeds of the sale. This is often the best plan financially, as it allows each spouse a flow of cash with which they can purchase a smaller home. Additionally, it allows the spouses to split quickly, especially in instances where there are no children from the marriage, and it allows the spouses to start over their lives in new homes, where there are no painful memories.
 
Except that shouldn't this

"One spouse pays the other spouse half of the home's fair market value at the time of divorce and gains complete ownership of the home"

be corrected to this?

"One spouse pays the other spouse half of the home's EQUITY (i.e. fair market value minus mortgage balance) at the time of SEPARATION and gains complete ownership of the home"
 
dinkyface said:
Except that shouldn't this

"One spouse pays the other spouse half of the home's fair market value at the time of divorce and gains complete ownership of the home"

be corrected to this?

"One spouse pays the other spouse half of the home's EQUITY (i.e. fair market value minus mortgage balance) at the time of SEPARATION and gains complete ownership of the home"
Click to expand...

True enough, the information in the above article, assumes that the property is PAID OFF and clear of mortgage and tax arrears.
Thanks for noticing that.
 
It should be noted as well that the matrimonial home can be vested in one or the other spouse in order to satisfy a support obligation by the courts.
 
limer said:
It should be noted as well that the matrimonial home can be vested in one or the other spouse in order to satisfy a support obligation by the courts.
Click to expand...

Could you give me a 'for instance' kind of example of this?:confused:
Thanks
 
Our trial is in a few months. I am aski g for the house in lieu of child support as he lives oversess and csnt force him. As well he hasnt paid anything in 3 years.
 
takeontheworld said:
Our trial is in a few months. I am aski g for the house in lieu of child support as he lives oversess and csnt force him. As well he hasnt paid anything in 3 years.
Click to expand...

Ok, so the matrimonial home can also be awarded as a compensation for defaulting on the SA? Am I making sense here? I ask because our SA states that I am owner of the house in the Interim - the place is paid for and so far the Ex has not kept up on any of our signed agreements.

My lawyer is going for an uneven division of assets due to bad faith of my Ex's part. Also I have offered EX a good chunk of private pensions to balance things out.
 
There is no default yet has he has not even been ordered to pay child support. I have no idea if rules regarding spousal support are different than child support. Essentially I am asking for his equity in lieu of child support. Its not a compensation for defaulting as that would imply I have asked for child support. I have not as it would be useless to do so.
 
takeontheworld said:
There is no default yet has he has not even been ordered to pay child support. I have no idea if rules regarding spousal support are different than child support. Essentially I am asking for his equity in lieu of child support. Its not a compensation for defaulting as that would imply I have asked for child support. I have not as it would be useless to do so.
Click to expand...

I would imagine that in cases where large amounts of either CS or SS are owed and on record through FRO that those sums could be exchanged for home equity at final agreement?

Sorry English is not my first language. :o
 
Uneven division of property:

"'The courts may also rule that the deeds of the house are transferred in full to one party. When it is impossible to secure any other assets, this is sometimes the only security the court can give to a parent with care of the children."

"Also, anything you agree to in a legal separation agreement can set a precedence. In other words, if you agree to your wife living in the marital home when you file for a legal separation and you continue to make the mortgage payments a judge may order you to continue doing so after a divorce. DO NOT agree to anything in a legal separation agreement that you would not agree to if you were negotiating a divorce settlement."

In cases where (serious) Domestic Violence are involved:

While a court may award an order for exclusive possession in many situations not involving violence or the threat thereof, the courts can sometimes be less forgiving where criminal charges have been laid. For instance, where abuse is alleged, a court may allow exclusive possession despite the cost of maintaining two households on a limited income (Wilson v Wilson).

Additionally, a court may not force the sale of the matrimonial home where it imposes unnecessary hardship on the accuser spouse (T (B) v T (G), 1997). In other instances, a court may grant an extended exclusive possession order (3 years, for example) with the option to the accuser spouse to purchase the accused spouse’s interest in the matrimonial home for a portion of that spouse’s net equity (Sloggett v Sloggett, 1989).

Finally, a court may hold an accused spouse liable for mortgage payments, hydro, and telephone expenses relating to the matrimonial home. Although the person with exclusive possession is generally responsible for such expenses, the presumption may be rebutted by reviewing the budgets of each spouse, the amount of support awarded, and the ability of the person in possession of the home to pay such expenses (Rintaluhta v Rintaluhta, 1987)
 
Where did you find this?

Fortunately for me, there was no domestic abuse. My ex was just a polygamist. He is now currently a non-resident of Canada, has no other assets, only debt that I keep finding out about.

He made me an offer to settle, which stated that upon my signing he would pay me $400 every month. The house would be sold and from his equity he would put $7000 in trust for our daughter. If he met his cs obligations every month for a year, he could have the $7000.

Sorry, that didn't fly with me because essentially he could then stop it after a year. Given his track record...I think he might actually be a pathological liar. I don't want his money. But what I do want is to not to have to move my daughter out of our neighbourhood. She has been in school here since KG, her friends are here and most importantly her daycare provider is her. This neighbourhood has increased invalue significantly since we originally bought it. I could not afford to purchase in this area and rentals for the most part are non-existant.

As for you, you should seek legal advise. Im not sure if you have a lawyer, but many lawyers offer free 30 minute consultations.
 
takeontheworld said:
Sorry, that didn't fly with me because essentially he could then stop it after a year. Given his track record...I think he might actually be a pathological liar. I don't want his money. But what I do want is to not to have to move my daughter out of our neighbourhood. She has been in school here since KG, her friends are here and most importantly her daycare provider is her.
Click to expand...

You could argue that moving would not be in the best interest of your child, she has her friends, activities and school well established.
The fact that your Ex lives in another country might be a problem depending on where that country is? His being a pathological liar and a polygamist could actually work in your favor.
 
Good stuff! However, if the expense to maintain the matrimonial home is being split then the "Occupancy Rent" also kicks in and has to be split.
 
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