New year, new beginnings, many are already preparing for valentine’s day. Love is on the horizon for you, and you may think of tying the knot with your significant other.
I want to start off by saying I’m thrilled for you. I love, love. I spend most of my work hours dealing with issues for people who have lost the love they once felt toward their partner, so when I get the chance to work with couples who are just about to take the plunge, my thrill knows no bounds.
So you’re about to get married. Here’s what I think you need to know from my perspective over a decade as a lawyer.
The legal vs. social perception of marriage
Socially, marriage is a celebration of love; we gather our closest and dearest (even if over a thousand people) to come to witness our love. Kindred spirits, and soulmates, finally joined together.
Legally though, your marriage is just a contract that confers rights and responsibilities. Remember this!
Property brought into the marriage may or may not be excluded
It is always shocking to people when they discover that they have to share equal properties that they brought into the marriage.
The good news is that you get the gist with most properties such as RRSPs, investment homes, stocks, bonds, Pokémon cards, etc. You are able to deduct the value as of the date of marriage. So you only share the portion that accrued during the marriage.
So if your real estate investment portfolio was worth $1,000,000 on the date of marriage and on the date of separation, it is worth $1,500,000, and your partner only gets half of $500,000.
Now, do not for a minute think this is always the case. You see, I was specific when I said investment real estate. The matrimonial home is a whole different beast.
Absent a domestic contract to the contrary, the full value of the matrimonial home will be shared equally. So using the figures above, your partner gets $750,000, NOT $250,000. Ouch.
Challenge
Without a marriage contract or cohabitation agreement, or if you prefer the cool version – prenup, most people will have no idea what their assets were worth on the marriage date. So, most people will not even be able to prove the date of marriage deduction they believe they are entitled.
It is extremely challenging to find statements for your stock portfolio’s worth in 1993!
Inheritance received during the marriage
This is interesting as most people believe they have a right to share in their partner’s inheritance. After all, even if on a subconscious level, the testator must have intended it for the family. Right?
Unfortunately, gifts and inheritance received during the marriage are excluded from net family property calculation, so it is not shared.
Again, not so simple. If you received your inheritance, deposited the funds into your joint accounts, and then it gets spent on a vacation, and nothing’s left on the date of separation, you don’t get the exclusion.
If you put the money into renovating the matrimonial home, kiss it goodbye.
I hear your thoughts. You are thinking, I got a $100,000 inheritance, and there’s still $50,000 of it left in our joint account. I get to exclude that $50,000, right? Well, there is a possibility that those funds may have lost their exclusionary character. It depends on the facts of your case.
Support obligations
Under the law, you have an obligation to support your significant other. The amount of support will depend on various factors such as the length of your relationship (notice I didn’t say marriage here), the roles you played in the marriage, age and the responsibilities that exist post-separation, for example, child care.
People are often shocked that they have to support a partner who chose not to work or took lower-paying part-time work. The fact is if you were ok being the breadwinner during the marriage, except you have a marriage contract to protect you, expect that you will continue to support your spouse even after you separate.
The law will make no exceptions because you always told them to get a job or that they have a Ph.D. from 20 years ago and could even make more money than you. If the facts are they were not working and you have supported them for some time, at the very least, on a needs basis, be prepared to pay spousal support.
Children from previous relationships – are you the daddy?
This one is a little emotional. Generally, we like to think of ourselves as good people. You married or cohabited with this person who had a precious little one. You were a great father figure and role model to this child. Taught them everything they knew. You were always there for them because you’re a “stand-up person.” This child loves you.
I know. You’re a good person. You believe it, and so do I, but do we really want to convince a judge of this? It’s called standing in loco parentis or, in English, standing in the place of a parent. While that is all good, being a parent means you have an obligation to support the child financially, regardless of whether you remain in the child’s life.
What does this financial obligation entail? A few hundred dollars once in a while for your little buddy? Nope.
You will have to pay the amount specified by the child support guidelines and a proportionate share of the child’s special and extraordinary expenses, which include things like daycare, hockey, and post-secondary expenses, to name a few.
Suppose you earn $200,000 and they earn $40,000 annually and have one child from a previous relationship who plays rep hockey ($5,000/year) and soccer ($2,000/year) and needs tutoring ($5,000/year).
You could be looking at paying $1,299 in base child support monthly and 79% of the other expenses, which would come to another $790 monthly.
Summary
As you can imagine, the above are just a few illustrations. There are many more rights and responsibilities that flow from entering a marriage.
So how do you deal with/ avoid the unintended consequences of marriage? You get a marriage contract or cohabitation agreement. Talk to a family law lawyer in Pickering. You can even agree in the contract that you want to share all your assets equally. That way, you’re both intentional about the consequences you want out of this marriage. Of course, this is just like getting dismemberment insurance. It’s never going to happen to you. You have it, just in case.
If you need any help with family law matters, contact AP Family Lawyers Toronto, Markham, and Scarborough. You can call us at (905) 492-7662 or email us at [email protected] to schedule a consultation.
