If you do not have not only a separation agreement, but a valid and enforceable separation agreement, then your ex will be allowed to bring claims for either property division or spousal support. The video below explains how to have a valid and enforceable separation agreement. (Child support is the right of the child and is not dependent on whether or not you have a separation agreement and can continue when the child is an adult. So your ex can always bring claims for chid support.) So, the question then turns to whether your ex would succeed if he or she brought spousal support or property claims against you.
Property Claims After Marriage Breakdown
The simpler answer is with regard to property. There are two parts of the law that may affect your ex's ability to make a claim:
- The property division scheme in Ontario does not relate to assets acquired after separations. What matters for "equalization of net family properties" is the growth of your respective net worths between the date of marriage, and the date of separation. Further, since section 4(5) of Ontario's Family Law Act, says that decreases in net worth do not count in the calculation, it is seems unlikely that he has a claim. In Ontario, wealth acquired after the date of separation is completely irrelevant to property division.
- There are strict time limits for making property division claims in Ontario. Section 7(3) of the Family Law Act says that if you have been separated for more than six years, or divorced for more than two, he cannot make any property claims.
The video below explains property division after marriage breakdown in Ontario. Note that property division is entirely different, if it happens at all, when common law couples separate.
Claims To Increases in Wealth After Separation
Even if your spouse cannot claim an equalization payment, he or she may be able to make claims in equity to share in any increase in value of your assets or your net worth after separation. Those claims are extremely complex and something that you really should speak to a lawyer about if you think they apply. There is also more information about them in the book referenced below. The video below explains claims your ex can make to increases in the value of your home after separation.
Note that the time limits for making these claims “in equity” are very different from the time limits for equalization claims. Your ex has only two years from separation to make claims to your money and other assets that are not a form of land. However, your ex has 10 years from separation to make claims agains your land - unless you get a separation agreement in place that prevents these claims.
Spousal support is more complicated. There are
no time limits for making a spousal support claim. However, to
succeed in getting spousal support, the spouse claiming it has to
prove entitlement to spousal support. There are several factors that a court considers in
deciding whether there is entitlement to spousal support. They are complicated and to know for sure, you need to speak to a
good family law lawyer. However, in marriages without children, unless one
spouse has made notable financial sacrifices to advance the other spouse's
career - either directly or indirectly - it is very difficult to prove
entitlement to spousal support. Unless a spouse can prove entitlement to
spousal support, the claim will fail.
Claims to spousal support based on post-separation increased in income are even more difficult because the claiming spouse has to prove that the increase in income is linked to the marriage.
For an introduction to the complicated area of spousal support law, watch the video below. The links and other references in this article lead to even more information about alimony law in Canada.
Not having a separation agreement may not be one the Top 10 Ways to Blow Your Case in Family Court - mainly because you do not draft a separation agreement in family court. However, not having a separation agreement does leave you open to making one of the major Family Law mistakes described in the video below.
You can get a lot more information about Ontario Family Law issues, including a further explanation of property division, spousal support and claims in equity, and how best to succeed with family law matters, by downloading this $9.99 e-book for Kindle, Kobo, or iPad/iPhone/Mac or ordering the paperback version. But, to keep out of trouble, it is always best to speak with a good family law lawyer.
A top family lawyer will help you put together a separation agreement that is tailored to the needs of you and your family and resolves everything between you and your former spouse in a way that is fair and that lasts forever - giving you peace of mind that your spouse cannot come back and create problems for you in the future. That, in turn, allows you to move on and create a new life for yourself.
Contact Certified Specialist in Family Law (and author of the book above), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below. We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).
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