Dividing Property After Separation or Divorce

4 min read
Property After Separation

Separating from a partner involves more than just an emotional transition; it requires a practical and legal untangling of the life you built together. In Alberta, dividing property after separation is governed by provincial jurisdiction, and since January 1, 2020, the same legislative rules apply to both married spouses and adult interdependent partners/common-law spouses. Understanding how your assets and debts are handled is necessary for creating an enduring result for your future after separation or divorce. 

Identifying Assets and Debts for Division

The first step in the process is to develop a comprehensive list of everything owned or owed by both parties. This includes property held in one person’s name alone, as well as jointly owned assets. 

To prepare for a fair division of property after separation, it’s necessary to gather documentation for the value of assets and the total of all debts. You should consider the following items: 

  • Real Estate: This includes the family home, vacation properties, and any real estate investments. 
  • Financial Accounts: You must disclose all bank accounts, including joint accounts and those in your name only. 
  • Investments and Pensions: Items such as Registered Retirement Savings Plans (RRSPs), pensions, and annuities are often subject to division. 
  • Personal Property: Vehicles and other household goods, and any other items of significant value, such as jewelry and artwork must be accounted for. 
  • Business assets: If you or your spouse own a business, those assets and their valuations must be part of the discussion. 

The Presumption of Equal Split

In Alberta, the law generally presumes a 50/50 split of property acquired by each spouse during the marriage. This means that the starting point for most negotiations is an equal distribution of the wealth and liabilities accumulated during the relationship. 

However, this presumption may not apply if there is a compelling reason for an unequal split. For instance, certain exempt property – such as assets owned before the relationship or specific inheritances – may be handled differently. The increase in value of these exempt assets during the relationship is a common area that requires careful legal analysis by one of our lawyers.

Protecting Your Property During the Process

Once a legal action for property division has commenced, there are mechanisms available to protect assets from being hidden or sold. In some cases, it may be necessary to apply for a court order to freeze bank accounts or valuables in a safe-deposit box. 

If your spouse or partner owns real property, your lawyer may file a certificate of lis pendens. This is a written notice registered against the title of the property that prevents it from being sold or remortgaged while the legal proceedings are ongoing, ensuring your rights take precedence. 

Creating a Formal Property Agreement

While the law provides a framework for division, the most successful resolutions often come from collaborative and flexible models where parties work toward a negotiated settlement. A formal settlement agreement allows you to maintain control over the outcome rather than leaving the final decision to a judge.

Contact the lawyers at Colborne Allyjan Law for a consultation, and we’ll help you navigate these complexities and ensure fair and equitable property division after separation or divorce.