Who Keeps Our Home After Separation?

Spousal Buyout divorce separation

Separation and divorce create uncertainty, especially in the early stages. The question of where you, and any children involved, are going to live is one of the biggest long term and short term decisions that you will make. In most cases, a married couple choose either to sell the house and split the profits, or there is a spousal buyout where one person pays money to the other to buy out their interest in the house.

The amount one spouse pays to the other is calculated by taking the value of the house, either by agreement or by relying on an appraisal. Then you deduct closing costs that would be payable if the house was to be sold (5% real estate commission and about $750 in legal fees) and the balance of the mortgage. The amount left over the equity in the house, both spouses are entitled to half of the equity, and this usually results in a transfer payment to the parent being bought out.

Depending on the financial situation of the couple, the spouse keeping the house will get a new mortgage that includes funds they can use to pay out their spouses share of the equity. 

So now what? You are separating, the whole point is that you do not want to live together anymore. And what about the kids, they still have school, you do not want to disrupt their lives any more than they already are.

Who gets exclusive possession of the matrimonial home?

Married spouses each have an equal right to the use and value of the house that you own, even if it is only in one spouses name. In some cases, the parties cannot agree on who will live in the house and living under the same roof may not be an option. The Matrimonial Property Act includes a section that allows the court to order one person can use the house, and the other has to leave. This may be just temporary but in some cases, especially if there are children involved, there may be a long term order.

If you rent your home, there is a similar provision under the Parenting and Support Act where the court can make an order granting one person exclusive use of the apartment or home. In the event you cannot decide who is going to move out, the courts can grant one person exclusive possession of the matrimonial home. The court will consider the best interests of the child and the availability of other housing options.

Sometimes people agree to move out but come to regret it later. Status quo is a powerful force in family law. Cases where one spouse leaves on a temporary basis can turn into a permanent situation. Family courts prioritize the interests of the children, if the kids have been living with one parent in the matrimonial for several months and they seem to be doing well, the court may be reluctant to consider ordering something that could disrupt the situation.

Many people do not get legal advice until its too late and the status quo has already taken hold. If you have questions about how to navigate the many pitfalls of separation and divorce, I’d love to hear from you.

If you're having an issue related to this topic we'd be happy to help.  You can call us at (902) 826-3070 to set up a meeting or contact us online.  You can also schedule a no commitment Issue Review Consult for $100+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

Peter Duke - Associate Lawyer

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