What is the timeline to address property and division after you separate in Alberta?
In Alberta, addressing property division after separation follows a legally defined process, governed primarily by the Matrimonial Property Act and the Family Property Act. Here is a detailed timeline and explanation of this process:
Legislation Governing Property Division in Alberta
In Alberta, the division of property after a separation or divorce, whether in a marriage or a common-law relationship, is governed by the Matrimonial Property Act and the Family Property Act. These laws mandate that assets must be divided fairly, which often means equally. The division is ideally negotiated between the parties, but in cases of disagreement, it may require legal resolution through courts.
Matrimonial Assets in Alberta
Upon separation or divorce, couples must disclose their assets, including family property, exempt property, and the increase in value of exempt property. Matrimonial assets encompass everything acquired after the marriage begins, including assets, investments, and real estate, regardless of who purchased them. However, certain properties are exempt, such as those acquired before the marriage, inheritances, gifts from third parties, proceeds from personal injury lawsuits, and insurance proceeds.
Exemption and Division of Property in Alberta
Exempt property, or “separate” property, includes assets owned before the marriage and certain specified types. The original value of these properties is exempt from division, but any increase in their value during the marriage is subject to division. The matrimonial home, often the largest asset, must be located in Alberta to fall under the jurisdiction of Alberta courts.
Equitable Distribution
While an equal division of assets and debts is common, the courts follow equitable distribution rules, meaning a fair division is prioritized over an equal one. Factors influencing this include the conduct of the parties and their financial contributions to the marriage. In certain cases, an unequal property division may be deemed fairest.
Living Arrangements Post-Separation in Alberta
Post-separation, decisions about living in the matrimonial home depend on mutual agreement or a court order. The courts can make various orders regarding the home, especially if children are involved or there’s a threat of danger. However, such orders do not change the legal ownership of the property.
Initiating Legal Claim for Property Distribution in Alberta
If an agreement can’t be reached, legal claims for property distribution must be filed within 2 years of the separation date. Each party must submit a detailed statement of their property for the court to determine the division.
Factors Considered by Courts in Alberta regarding property division
In deciding the division of property, courts consider the length of the relationship, contributions by each party, financial situations, tax liabilities, and any existing agreements or court orders. Misconduct by either party generally does not influence the division, except in cases where family property was used or sold improperly.
Division of Debts in Alberta
Debts, including both secured and unsecured ones, are also divided in the process. Debts incurred during the marriage are usually divided equally, unless it’s proven that they were outside the scope of the marriage or interdependent relationship.
Time Frame for Filing Claims for Property Division in Alberta
For married couples, the claim for the division of matrimonial property must be commenced within 2 years from the date of separation or the granting of the divorce. For common law partners, known as adult interdependent partners in Alberta, the application for a family property division order must be filed no later than 2 years after becoming a ‘former adult interdependent partner’.
This timeline provides a comprehensive overview of the process for property division after separation in Alberta, emphasizing the importance of timely legal action and the various factors that can influence the division of assets and debts.
