Property Division

Whether there has been a breakdown in your marriage or your common-law relationship, one issue that is often confusing and challenging for spouses is property division. Determining what assets are to be divided, how they are to be divided, and who is entitled to such division, are just some of the many questions that arise.

Separation is difficult enough on its own without the added stress and confusion that often emerges when spouses are dividing their assets. The first step that we at Holam Law PC always recommend to clients is to arrange an initial consultation with an experienced family law lawyer, to identify the property issues and the processes by which such issues can be resolved in a timely and cost-effective manner.

Property Division of Assets for Married Spouses

For married spouses, there is a more formalized process for the division of property, known as equalization or a division of the spouses’ respective net family properties (Equalization of net family properties), that is generally dictated by the Family Law Act. Either spouse may bring a claim for equalization of net family property following the date of separation. Spouses must be aware that under the Family Law Act, there are limitation periods to bringing such a claim. Further, if the parties cannot mutually agree on the date of separation, this becomes a legal issue that must be determined as it can affect property division. For that reason, it is very important to consult with a family lawyer as soon as possible if there are property issues to be resolved between you and your spouse.
Many spouses erroneously believe that property division simply entitles one party to one-half of the other party’s assets. This is a fallacy. To determine the equalization payment (Equalization of net family properties), the growth in value of each party’s assets during the marriage must first be calculated. This value is known as a spouse’s “net family property”. The spouse with the larger net family property must pay to the other spouse an amount that is equal to half the difference between the two parties’ respective net family properties.
While this calculation may appear simple on its face, there are many factors that can impact the calculation of a party’s net family property. This in turn can significantly impact the equalization payment owing from one spouse to the other. Such factors may include but are not limited to the date of separation, the types of property that may be excluded from a spouse’s net family property, and determination of the value of assets such as a spouse’s business or pension.

In order to accurately determine a spouse’s net family property, full disclosure of real and personal property and assets, businesses, and debts and liabilities is crucial. Transparency from the outset is key.

Property Division for Common-Law Spouses

Unlike married spouses, there is no legislated process by which common-law spouses divide family property. Instead, common-law spouses must rely on common law and equity claims to establish on a balance of probabilities a right to any division of property and assets accumulated during the length of the relationship, or to any property owned by the other spouse to which you may have contributed financially.

Because a common-law partner is not automatically entitled to the division of family property, any division is much more fact driven and presents its own challenges. It is therefore very important to consult with an experienced family law lawyer if you are separating from a common-law spouse and believe there are property issues.

Schedule a Consultation

Our team at Holam Law PC has the knowledge, experience, and skill set to assess and distill complex property issues into cost-effective and fair solutions for your family law matter. With professionalism and a personalized approach to your needs, we will guide you every step of the way so that you are always informed of your legal rights and obligations.
The first steps in resolving your property issues is to contact us for a consultation.
Call us at 365-608-6161 or email us at to schedule an appointment today.