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Difference between revisions of "Dividing Property and Debt in Family Law Matters"
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Dividing Property and Debt in Family Law Matters (view source)
Revision as of 01:37, 29 March 2013
, 01:37, 29 March 2013→Putting the Plan into Action
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'''Step One''' | '''Step One''' | ||
To divide property and debt under the ''Family Law Act'', you must first decide whether you are a "spouse" as defined by s. 3(1)(a) or 3(1)(b)(i). You must either be married or have lived with your partner in a marriage-like relationship for at least two years. | <blockquote>To divide property and debt under the ''Family Law Act'', you must first decide whether you are a "spouse" as defined by s. 3(1)(a) or 3(1)(b)(i). You must either be married or have lived with your partner in a marriage-like relationship for at least two years.</blockquote> | ||
If you're not a spouse, ''stop'' and read the discussion about people who don't qualify as spouses divide property under the common law relating to trusts and equity in the _____ page. | If you're not a spouse, ''stop'' and read the discussion about people who don't qualify as spouses divide property under the common law relating to trusts and equity in the _____ page. | ||
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'''Step two | '''Step two | ||
Next you to look at any ''cohabitation agreement'' or ''marriage agreement'' that you may have signed earlier in your relationship to see whether it talks about how property or debt. | <blockquote>Next you need to look at any ''cohabitation agreement'' or ''marriage agreement'' that you may have signed earlier in your relationship to see whether it talks about how property or debt.</blockquote> | ||
If you have an agreement about property, ''stop''. Section 94(2) says that you cannot apply for a division of property if there's a written agreement about property or debt until that agreement is set aside. | If you have an agreement about property, ''stop''. Section 94(2) says that you cannot apply for a division of property if there's a written agreement about property or debt until that agreement is set aside. | ||
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'''Step Three | '''Step Three | ||
Next you have to check that you're making your claim within the ''time limits'' set out in s. 198(2). Married spouses must bring their claims for the division of property and debt within two years of the date of their divorce or a declaration declaring their marriage a nullity; unmarried spouses must bring their claims within two years of the date of their separation. | <blockquote>Next you have to check that you're making your claim within the ''time limits'' set out in s. 198(2). Married spouses must bring their claims for the division of property and debt within two years of the date of their divorce or a declaration declaring their marriage a nullity; unmarried spouses must bring their claims within two years of the date of their separation.</blockquote> | ||
If you're outside the time limits, ''stop'' and talk to a lawyer whether you're within the limitation period to ask for an interest in property under the common law relating to trusts and equity. | If you're outside the time limits, ''stop'' and talk to a lawyer whether you're within the limitation period to ask for an interest in property under the common law relating to trusts and equity. | ||
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'''Step Four''' | '''Step Four''' | ||
Now you have to figure out whether there's ''another court'' somewhere outside of British Columbia that has the authority to make an order affecting you, your spouse and your property. Most of the time the answer to this question will be no, however if: | <blockquote>Now you have to figure out whether there's ''another court'' somewhere outside of British Columbia that has the authority to make an order affecting you, your spouse and your property. Most of the time the answer to this question will be no, however if:</blockquote> | ||
#you and your spouse lived somewhere else for a long time; | ##you and your spouse lived somewhere else for a long time; | ||
#you have property outside of the province; or, | ##you have property outside of the province; or, | ||
#you have a cohabitation agreement or a marriage agreement that requires the laws and courts of another place to be used, | ##you have a cohabitation agreement or a marriage agreement that requires the laws and courts of another place to be used, | ||
there may be a problem. If another court can make an order, you then have to figure out whether the courts of British Columbia should be hearing your case or not under s. 106. | <blockquote>there may be a problem. If another court can make an order, you then have to figure out whether the courts of British Columbia should be hearing your case or not under s. 106.</blockquote> | ||
If your case is better dealt with by another court, ''stop'' because you'll need to start a court proceeding there. If not, you can continue here | If your case is better dealt with by another court, ''stop'' because you'll need to start a court proceeding there. If not, you can continue here | ||
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'''Step Five''' | '''Step Five''' | ||
Now you have to start sorting what you have into ''family property'' and ''family debt'', and ''excluded property'' and ''personal debt''. Start from the assumption that everything you have is family property and family debt and the work backwards. | <blockquote>Now you have to start sorting what you have into ''family property'' and ''family debt'', and ''excluded property'' and ''personal debt''. Start from the assumption that everything you have is family property and family debt and the work backwards.</blockquote> | ||
Property and debt that you got ''after you separated'' is generally the separate property of each spouse, with two main exceptions: | <blockquote>Property and debt that you got ''after you separated'' is generally the separate property of each spouse, with two main exceptions:</blockquote> | ||
#property bought after separation with family property is also family property; and, | ##property bought after separation with family property is also family property; and, | ||
#debt incurred after separation to maintain family property is family debt. | ##debt incurred after separation to maintain family property is family debt. | ||
Property you got ''during your relationship'' is generally family property, except for certain kinds of property that are excluded from family property. These include: | <blockquote>Property you got ''during your relationship'' is generally family property, except for certain kinds of property that are excluded from family property. These include:</blockquote> | ||
#inheritances; | ##inheritances; | ||
#gifts; | ##gifts; | ||
#certain court awards; and, | ##certain court awards; and, | ||
#certain insurance payments. | ##certain insurance payments. | ||
Property and debt that you got ''before your relationship'' is generally excluded property and personal debt. | <blockquote>Property and debt that you got ''before your relationship'' is generally excluded property and personal debt.</blockquote> | ||
'''Step Six''' | '''Step Six''' | ||