When a couple divorces in Alberta, the entitlements for both spouses are equal—a wife has no special rights over a husband.
Decisions on property division, debt repayment, support issues, and child decision-making responsibilities & parenting time can be made by separation agreement or according to established legislation by the Alberta courts.
The federal Divorce Act provides the legal framework for the dissolution of a marriage, while the Alberta Family Law Act can be referred to for adult interdependent partner relationships and other matters.
Property division in an Alberta divorce
Marital property division is one of the major contested issues in many divorces. In Alberta, the laws stipulate the equitable division of marital property, meaning that assets from the marital estate must be divided fairly between spouses.
In most cases, this equates to a roughly equal division of property, but a judge has leeway to adjust the division of marital assets either way if there are valid reasons for doing so.
Marital assets include all property accumulated during the marriage, such as real estate, investments, and savings—as well as any debts or liabilities.
Separate assets are those that either partner brought into the marriage or received for their sole benefit. They are not subject to division unless they have been commingled with marital assets.
Spousal support entitlements in Alberta
Another contentious matter in Alberta divorces is spousal support. A wife’s entitlement to spousal support is not automatic and depends on the following factors:
- The length of the marriage
- The roles of each spouse during the marriage
- The financial means of each spouse to support themselves independently after the divorce
- The financial needs of each spouse after the divorce
- The career opportunities available for each spouse
- Economic hardships or disadvantages arising from the marriage
Whether the wife is the recipient or payor of support depends largely on the respective incomes of each spouse.
If eligible for spousal support, the amount and duration of support payments depend on the length of the marriage and other factors.
Child decision-making responsibilities and support in Alberta
Child custody is now called “child decision-making responsibilities” in Alberta.
In all matters concerning children, the best interests of the children are given priority by law in Alberta. The child’s emotional and physical welfare and educational development are the main concerns when considering who makes decisions and what the financial needs (support requirements) are after a divorce.
Legally, both parents are responsible for raising and supporting their children. Unless a parent is deemed unfit to care for a child, he/she will be involved in the decision-making responsibilities while practical considerations usually mean that the child lives mainly with one parent. However, the other parent enjoys visitation rights by a pre-arranged schedule.
Child custody arrangements can vary on a case-by-case basis, with child support calculations made according to standard guidelines and formulas.
Financial planning after a divorce
Wives and husbands should plan carefully for life after separation and divorce, to make the transition to an independent and self-sufficient life smoother.
After all, divorce can be a major financial disruption, and the new circumstances may take some getting used to for both partners after spousal support, child support, and marital property division decisions have been implemented.
It’s often advisable to seek professional financial planning assistance to ease the transition process. This can help with reevaluating income and expenses, retirement planning, investment strategies, and estate planning so that they reflect the new financial circumstances.
How do I protect my assets during a divorce in Alberta?
When a married or common-law couple separates in Alberta, there is no escaping the need for an equitable distribution of marital property—but there may be ways to protect assets that should be regarded as “separate” from the marital estate.
If you and your ex-spouse negotiate property division privately through discussion, collaboration or mediation, almost any way to divide property is acceptable.
You may be able to retain the assets that are the most valuable to you. If, however, you want to ensure that your legal rights are protected during the process, hiring a qualified divorce lawyer is advisable.
If the matter goes to court, a seasoned divorce lawyer should represent you and the applicable property division laws will be applied by a judge, who will decide how matrimonial assets are divided.
It should be noted that the presence of a valid prenuptial or post-nuptial agreement may affect the decision of who ends up with what.
Assets exempt from division during a divorce
Certain assets are exempt from division during the divorce process, and, with the help of a divorce lawyer, you may be able to optimize these assets.
Examples of assets that are generally regarded as “separate” from the marital estate (unless considered commingled with it) include:
- Gifts from a third party intended solely for you
- Inherited property
- Assets owned before the marriage started
- The proceeds of a lawsuit, such as a personal injury claim
- Assets received as proceeds from an insurance policy
To claim an asset as “separate” rather than part of the marital estate generally requires proof from the claimant.
The commingling of assets normally considered “separate” may cause them to be considered part of the marital estate. For instance, if an inherited sum is deposited in a joint bank account with your spouse or you add your spouse’s name as the joint owner of a property you inherited.
If assets increase in value during the marriage, the increase in value may be considered part of the marital estate.
To protect your assets using legal means, seek the assistance of a qualified property division lawyer or divorce lawyer.
Is your pension exempt from division during a divorce?
In Alberta, pensions and other retirement accounts that accrued during the time of the marriage are not exempt. They are subject to division during divorce proceedings—and they often form a large share of the marital estate.
This comes as a surprise to some divorcing couples. Calculations can be complex and may require the guidance of a divorce lawyer, especially if part of the pension is considered marital property and the rest is exempt, as is often the case.
Because some property is easier to divide down the middle than other assets—for instance, a bank account or retirement fund can be halved but a house cannot—a negotiation process is normal when spouses discuss property division. A trained mediator or lawyer can help you seek mutually acceptable solutions and avoid a court trial.
Consider prolonged separation instead of divorce
For couples in Alberta who are not in a rush to remarry, a prolonged separation may be a practical alternative to immediately pursuing divorce. This approach can provide valuable time to resolve complex issues at a more comfortable pace, potentially reducing stress, disputes, and legal expenses.
However, it’s important to consider that Alberta law requires a minimum of 12 months of separation before a divorce can be finalized. While a prolonged separation may seem appealing, it’s essential to weigh the benefits against the possibility of prolonging emotional and financial uncertainty.
Seeking legal advice is crucial to determine whether a prolonged separation is truly the best option for your situation. A lawyer can help you evaluate whether it’s better to address matters promptly or take more time to reach amicable solutions.
If you live in the Calgary area and need assistance with any matters concerning divorce, the experienced lawyers at Jennings Family Law can help you. Call us directly at (403) 316-0138 or book a case evaluation to discuss your situation.
