We're Separating- How Do We Decide Who Gets What?!

shutterstock_521691409.jpg

Along with a parenting plan, property division is the other area where much of mediation time is spent.  Questions abound in this area.  How do we decide who gets what?  Do we just split it 50/50?  What am I entitled to?

The answers, of course, are different depending on your specific situation.  Although it is important to know your legal rights and what you are entitled to, the beauty of mediation is that it is flexible and you and your ex-partner get to decide the final outcome.  And that may be very different than what you are entitled to.  Sometimes what we are entitled to isn’t what we actually want. 

But to give you a basis for your decisions I’ll fill you in on the general guidelines for property division.  Remember!  This is the general overview and your situation may be different.  There can be grey areas in property division and legal advice may be helpful so that you are making informed decisions.

Family Property

This typically includes property that existed at the beginning of the marriage or common-law relationship, regardless of whose name it is in.  It also includes property acquired during the span of the marriage to, typically, the date of separation.

Family property generally includes things like (this is not an exhaustive list):

·      the family’s primary home

·      other real estate (cottages, investment properties etc.)

·      vehicles

·      recreation vehicles (boats, RV’s etc.)

·      timeshares

·      airline points

·      furniture

·      antiques

·      collections

·      money in bank accounts

·      retirement savings plans

·      non-retirement investments (mutual funds, stocks, bonds etc.)

·      life insurance cash value

·      stock options

·      businesses

Excluded Property

This typically includes:

·      gifts or inheritances given to one spouse and kept in that spouse’s separate name

·      personal items (clothing, sports equipment, inexpensive jewellery etc.)

·      family heirlooms

·      property that has been protected by means of a pre-nuptial, post-nuptial or co-habitation agreement

Excluded Property can become a grey area and can become Family Property depending on how the property was treated during the marriage or common-law relationship.

How to Divide Your Property

Many people think you just add it all up and divide it so that each person gets assets equal to 50% of the total.  While 50/50 may be a place to start it is likely not where you’ll end.  You want your division to be “fair and equitable.”  This means that although it may not be equal in terms of present dollar amount, over the long term, it is equitable.

For example, if one spouse takes the house and the vehicles and the other spouse takes all of the investments, on paper the numbers may appear equal.  However, over the long term, the spouse who took all of the investments is more likely to come out way ahead of the other spouse.  This is because, although the house may appreciate there is also a cost to keeping the house.  And of course, we all know cars don’t appreciate. 

Another thing to consider is future potential income.  If one spouse has always been at home and the other has worked you will want to consider the long term earning potential for each person when you are dividing assets.

So you could start with 50/50 and then start to analyze the impact of that division in the long-term and start to make adjustments.

The goal is to be fair and equitable because that is not only in your best interest it is in your children’s best interest to live in two households that have a similar quality of life.

Valuation

What is it all worth? As you can imagine, the value of various property can be a big point of contention.  Sometimes couples can easily agree on amounts for various items.  But the house, often the biggest asset, can commonly be a roadblock.  If that is the case, and you cannot agree on a value, then it is best to seek out objective information.  This can come from a realtor or an appraiser that you have both agreed on.  For finances you generally take the value of those assets on the date of separation.  Pensions can be more difficult and may take more work to determine how to handle them.  Things like furniture often don’t come into play when adding up assets.  Couples often just divvy them up or sell them and are done with it.  However, if you want to include your furniture as an asset, unless it is an antique or a particularly unique piece, you generally value each piece by what you could get for it at a yard sale or on a used online market.  Although you paid $2000 for your sofa, it’s probably only worth a few hundred used.

Benefits of Mediation in Division of Property

As I mentioned, it is important to know your rights and what you are entitled to so that you are making informed decisions.  But it’s not uncommon that what you are entitled to is not what you actually want.  In mediation the two of you have all the control and power to make decisions that make sense for you, your situation and your kids.  It’s all in your hands.  My job, as your mediator, is to help you work your way through those, sometimes difficult and emotional, discussions so you can get to an agreement.

Have questions?  Feel free to get in touch, I’m happy to answer them.

-author, Lori Frank

Content is for informational purposes only and is not intended to be construed as legal advice or advice about your specific situation.