toby
Champion Member
- Sep 29, 2009
- 104
- Category........
- Visa Office......
- Hong Kong
- Job Offer........
- Pre-Assessed..
- App. Filed.......
- November 2009
- Med's Done....
- October 2009 and 15 April 2011
- Interview........
- 4 April 2011
- Passport Req..
- 4 April 2011
- VISA ISSUED...
- 7 July 2011
- LANDED..........
- 15 July 2011
Interesting replies from both canadianwoman and rjessome. Thanks for taking the time.
I always thought that Divorce Law was federal, and so its application did not vary from province to province. Federal Divorce law was revised on the mid-eighties to reduce expensive court time. But maybe the lawyers have found a way to complicate the issue again, and keep their billable hours up?
A divorce requires a decision on alimony, child support and the division of assets.
If one spouse left a good career to raise a family, that would certainly enter into a calculation of alimony – how much, for how long. But divorce was also supposed to be “no fault”, so the reasons for breaking up (including abuse) were not to be considered.
Regarding child support, originally it was supposed to provide the basic necessities, and anything above that amount was to be at the discretion of the parent. However, court decisions show that the income of the richer spouse does indeed influence how much child support he or she must pay, so evidently the Court has decided to impose specific amounts.
This is my understanding of federal Divorce Law, and I have not been able to find any legislative revisions.
Now we come to my confusion and question (still not completely answered) about how the home is treated in the division of assets. The process was supposed to be quick and easy.
1) Add up all assets on the day of legal separation, without speculating on what the future might bring (it did not matter that a stock portfolio might increase later; so might the house; both cold as easily rise or decline in value; the Court was not to get into the business of guessing the future.) Note that the house is included in this amount.
2) Add up the assets brought into the marriage.
Note that the house is excluded from this amount, no matter who paid for it..
3) Subtract (2) from (1); the remainder was considered “communal property”, and was to be divided equally between the ex-spouses.
Clearly, if overall assets at separation are higher than at marriage, then the poorer spouse effectively gets half the house.
Example: Let’s assume that the poorer spouse has nothing, to simplify the example. At marriage the richer spouse has a house worth $100 and other assets worth $200. “Personal” assets are valued at $200, not $300 since the house is not included. At separation the house is worth $150, but the other assets (e.g. stock portfolio) have declined to $25. Total assets at separation are $200, exactly the same as at marriage (this time the house is included).
Some feel that the poorer spouse gets half the house (value $75) regardless of what happened to the other assets of the richer spouse. Canadianwoman believes this, and her sister who works on a law office confirmed this understanding. However, I am not completely sure the question got asked clearly. Remember the party game where one person whispers a message into another person’s ear, that person whispers it into a third person’s ear, and so on until the final person announces the message to everyone? The end message was usually completely different from the initial message.
A lawyer who specializes in divorce and Wills once told me that because the total assets had not increased in value, there was no “communal property” to divide, and that the poorer spouse did not automatically get half the house. This makes sense at face value because IF the house were going to be divided regardless of what happened to the rich spouse’s other assets, why include the house in the calculation of total assets? Just make the house a separate calculation: get a value as of separation day and divide by two. Simple.
The reason I keep digging at this is that another lawyer answered the question differently (but I wasn’t there to hear how the question was phrased) , and so the uncertainty continues. I’ll consult the sources rjessome recommended, and report back if anyone is interested.
I realize that this is not an appropriate topic for people full of the optimism of getting married and moving to a new country. So this is just for knowledge, nothing more.
I always thought that Divorce Law was federal, and so its application did not vary from province to province. Federal Divorce law was revised on the mid-eighties to reduce expensive court time. But maybe the lawyers have found a way to complicate the issue again, and keep their billable hours up?
A divorce requires a decision on alimony, child support and the division of assets.
If one spouse left a good career to raise a family, that would certainly enter into a calculation of alimony – how much, for how long. But divorce was also supposed to be “no fault”, so the reasons for breaking up (including abuse) were not to be considered.
Regarding child support, originally it was supposed to provide the basic necessities, and anything above that amount was to be at the discretion of the parent. However, court decisions show that the income of the richer spouse does indeed influence how much child support he or she must pay, so evidently the Court has decided to impose specific amounts.
This is my understanding of federal Divorce Law, and I have not been able to find any legislative revisions.
Now we come to my confusion and question (still not completely answered) about how the home is treated in the division of assets. The process was supposed to be quick and easy.
1) Add up all assets on the day of legal separation, without speculating on what the future might bring (it did not matter that a stock portfolio might increase later; so might the house; both cold as easily rise or decline in value; the Court was not to get into the business of guessing the future.) Note that the house is included in this amount.
2) Add up the assets brought into the marriage.
Note that the house is excluded from this amount, no matter who paid for it..
3) Subtract (2) from (1); the remainder was considered “communal property”, and was to be divided equally between the ex-spouses.
Clearly, if overall assets at separation are higher than at marriage, then the poorer spouse effectively gets half the house.
Example: Let’s assume that the poorer spouse has nothing, to simplify the example. At marriage the richer spouse has a house worth $100 and other assets worth $200. “Personal” assets are valued at $200, not $300 since the house is not included. At separation the house is worth $150, but the other assets (e.g. stock portfolio) have declined to $25. Total assets at separation are $200, exactly the same as at marriage (this time the house is included).
Some feel that the poorer spouse gets half the house (value $75) regardless of what happened to the other assets of the richer spouse. Canadianwoman believes this, and her sister who works on a law office confirmed this understanding. However, I am not completely sure the question got asked clearly. Remember the party game where one person whispers a message into another person’s ear, that person whispers it into a third person’s ear, and so on until the final person announces the message to everyone? The end message was usually completely different from the initial message.
A lawyer who specializes in divorce and Wills once told me that because the total assets had not increased in value, there was no “communal property” to divide, and that the poorer spouse did not automatically get half the house. This makes sense at face value because IF the house were going to be divided regardless of what happened to the rich spouse’s other assets, why include the house in the calculation of total assets? Just make the house a separate calculation: get a value as of separation day and divide by two. Simple.
The reason I keep digging at this is that another lawyer answered the question differently (but I wasn’t there to hear how the question was phrased) , and so the uncertainty continues. I’ll consult the sources rjessome recommended, and report back if anyone is interested.
I realize that this is not an appropriate topic for people full of the optimism of getting married and moving to a new country. So this is just for knowledge, nothing more.
