Is your marriage on the brink of divorce? This can be a very confusing situation for you as you wonder what your rights and obligations will be from now on.
It's understandable, after all, as divorce has unfortunately become more common nowadays and has become subject to many misconceptions.
Good thing that JuriGo can explain divorce issues to you for your peace of mind. You'll know how to divide your family assets, liquidate your matrimonial regime, and get a child custody agreement in place.
Hire a family law attorney to settle your divorce quickly and painlessly . JuriGo has several family law specialists who will be happy to handle your divorce!
Do you meet the requirements for divorce?
Before we talk about your divorce rights, you need to meet certain criteria to qualify for a divorce petition.
Contrary to popular belief, not everyone can get a divorce. Since spouses are theoretically bound together for better or worse, the law requires that one of three grounds provided by law be present to justify the request for a divorce.
Mental or physical cruelty is the first of these reasons . This includes spousal abuse, but is by no means limited to this scenario and includes much broader situations. In particular, humiliation, hurtful words, and other acts that make cohabitation intolerable will form part of psychological abuse that could justify filing for divorce.
Adultery (or infidelity) is also grounds for a divorce. Admitting to adultery or proving that a spouse is guilty of adultery, however, will have no bearing on the divorce agreement. Although it opens the door to divorce, adultery will not affect the terms for dividing property or determining the custody of children.
However, the most common reason given in a divorce petition is that the couple has been separated for at least one year, and in order to avoid an emotional, costly, and difficult trial, many couples just choose to cease living together and separate for one year without resuming cohabitation for more than 90 days. Once these conditions are met, they become eligible to file for divorce.
Is this all there is? Far from it! The most important aspects are yet to come, namely the division of the family patrimony, the matrimonial regime, and the determination of the custody of the children. These matters can be handled by your family law attorney!
What does division of family patrimony mean? Property that is rightfully yours
The family patrimony refers to all of the properties that both spouses have a claim equivalent to one-half. In concrete terms, when two people get married, the law provides that some of the property they acquire will be part of this common patrimony because of its nature and its connection to the household.
Upon divorce, each spouse is entitled to an equal division of the value of the property that constitutes this patrimony, regardless of which of the two spouses actually owns it. Here are the assets that constitute this patrimony!
The furniture in the family home. The term "furniture" is broadly understood to include all the furniture in the living room, kitchen, and bedroom, as well as decorative objects such as paintings and works of art that may adorn the house.
The principal residence must also be included in the definition of the family patrimony as well as secondary residences if they were used by family members. A cottage, a condo in the south, and other properties can be divided in value at the time of the divorce.
Family vehicles are also part of the patrimony, as are RRSPs and retirement funds accumulated during the marriage. Thus, any retirement fund contributions from before the marriage will belong exclusively to the spouse in question; the rest will become part of the patrimony.
Remember that the division of the family patrimony involves the division of the value of the patrimony, not the ownership of the property. For example, if the wife owns the house and the cars, there is no reason for the husband to take them. However, if the wife refuses to share the property, she will have to pay half the value in cash.
The first step in the division of the family patrimony is to evaluate the value of the patrimony as a whole in order to determine whether it is preferable to proceed with a division in property or whether the division should be made by financial compensation.
There are two ways to determine the value of family patrimony . Either the spouses agree on the value of each property, or they mandate a qualified appraiser to provide an impartial estimate. The choice is up to the spouses.
The criterion to be considered when determining whether a property is part of the family patrimony is if it is “for the use of the household”. Thus, certain movable property or even vehicles may be excluded if they are used by only one of the spouses.
For example, a classic car that leaves the garage only once a year will be difficult to consider as an automobile serving the needs of the household.
Much of the work of the lawyers is to qualify each asset to ensure that you get the maximum amount you are entitled to in your divorce.
Matrimonial regime: Separation of property or partnership of acquests?
Now that you know the extent of your rights under the family patrimony, can you say the same about your matrimonial regime?
Many people don't know what their matrimonial regime is until the moment of their divorce, at which time the surprises are not always pleasant. To avoid this scenario, we will explain what you need to know about matrimonial regimes in the event of a divorce.
What is a matrimonial regime? It is the method of distributing the value of a property that is excluded from the family patrimony. It is a complement to the family patrimony and is used to provide for the division of property in the event of divorce. There are two matrimonial regimes in Quebec: partnership of acquests, and regime of separation as to property.
Under partnership of acquests, the marriage involves the creation of two categories of property, namely, private property and acquests. Private property belongs exclusively to the spouse who owns it and is not subject to division upon divorce.
This includes property acquired before the marriage, gifts, inheritance, and property acquired with one’s own funds. Acquests, on the other hand, are assets that are not considered private property and will be divided by the spouses at the time of the divorce. However, it may be necessary to determine certain "rewards" to acquests, as these are adjustments to make up for possible inequities.
If you are married under the regime of separation of property, the process is even simpler. In fact, each spouse is responsible for the property he or she owns. He or she can dispose of it freely during the marriage and in case of divorce, there is no division of property. It is a regime that allows each spouse to preserve their independence.
Community of property is the oldest and least used regime today. However, since some older couples were married under this regime, it is still relevant to know about it. This regime creates three categories of property: the husband's or wife's own property, common property, and property reserved for the wife.
In this regime, the spouses administer their own property individually, they manage the common property together, and the wife has the exclusive management of her reserved property. In case of divorce, the wife must accept or refuse the "community".
If she accepts, the spouses become co-owners of the common and reserved property of the wife. In case of refusal, the husband leaves with the common property and the wife keeps her reserved property, each leaving with his own property.
What if you never prepared a marriage contract? As of July 1, 1970, partnership of acquests is the "default" matrimonial regime for couples who fail to arrange for another regime in a marriage contract. However, not all married couples want a partnership of acquests, and if this is your case, it is best to plan the matrimonial regime of your choice.
Advantages of choosing an amicable divorce agreement!
Amicable divorces are getting more popular because of the many advantages couples can obtain.
But what are the conditions for filing an amicable divorce agreement?
The spouses must have been separated for 1 year. The grounds of cruelty and adultery are not admissible for joint applications for amicable divorce. The spouses must agree on all the terms and conditions of the divorce, including the terms of custody of the children, the division of property, and other auxiliary measures.
It is still possible for the spouses to reach an amicable agreement even if they disagree on certain provisions but they will need legal representation from different lawyers. For example, the spouses may agree on how to divide their property but disagree on the custody of the children.
An amicable divorce, if it is possible in your situation, brings significant advantages!
First of all, it saves time. Indeed, even if you have to wait for the one-year separation period to expire, the fact that you submit a joint application wherein you declare that you agree to all the conditions of the divorce will greatly facilitate the work of the court. The court will only have to verify that the application respects both of your rights, including those of the children.
An amicable divorce can also save money! A divorce lawsuit that drags on in court will hurt your finances because of the legal fees and other court costs. Even though an amicable divorce requires the services of a lawyer, the bill will still be much lower than a divorce trial in court involving conflict.
Is an amicable divorce difficult in your case? Consider family mediation! It is impossible to force an ex-spouse to divorce amicably without his consent. However, if he or she refuses, family mediation services can encourage dialogue and increase the chances of reaching an amicable settlement.
JuriGo can connect you to a lawyer who specializes in family mediation to settle your divorce amicably and avoid the high costs of a trial!
Simply contact us using the form at the bottom of the page, free of charge!
Find a lawyer to settle a divorce quickly with JuriGo!
Ready to turn the page on a chapter of your life? Divorce is a way to make a clean break and start anew, as long as it is done properly and your rights have been respected.
It is the job of your family law attorney, a divorce specialist, to assert your rights in this process.
With that in mind, contact a qualified JuriGo family law partner to handle your divorce.
Fill out the form at the bottom of the page and we'll put you in touch with a lawyer who can help you get through this difficult matter as efficiently as possible.
Our referral service is free and without any obligation on your part!