Upon divorce or separation, family property and debt gets divided, but each spouse keeps their own excluded property.
The law assumes spouses will share family property equally, but excluded property belongs to the spouse who owned or received it. However, if excluded property appreciates in value during the relationship, that increase in value is considered family property, and is subject to division.
A judge can divide family property unequally or even divide excluded property if it would be “significantly unfair” not to do so.
Family debt is divided just like family property. The law presumes they will be shared equally unless the spouses agree otherwise or a court says differently.
Family debt is all debt that a spouse takes on during the relationship that is still owed at separation, or is taken on after separation in order to maintain family property (such as borrowing to pay property taxes on a home that is family property).
Family property is real and personal property that either or both spouses acquire during their relationship. Family property includes:
- A share or an interest in a corporation;
- An interest in a partnership, association, organization, a business or a venture;
- Property owing to a spouse;
- Money of a spouse in an account;
- A spouse’s entitlement under a pension;
- Property that a spouse disposes of after the relationship began;
- The amount by which the value of excluded property has increased since the relationship began, or the excluded property was acquired.
Excluded property is:
- Any property either spouse owned before the relationship started;
- Gifts and inheritances given only to one spouse;
- Compensation and insurance payments made to one spouse for personal injury or loss (but not if the payment was compensation for lost wages);
- Property bought during the relationship with excluded property (such as a car bought with money a spouse already had in the bank at the time of the marriage).