Determining your property division agreement
Property division is usually the most time-consuming, costly and stressful part of negotiations.
At Fairway Divorce Solutions, helping you determine how property gets fairly divided is what we do best. We have successfully divided hundreds of millions in family assets in Canada since 2006. Deciding who gets what and at what value is one of the most stressful and complex issues in a divorce. We make it easier. We understand that you have worked hard to accomplish your wealth, and ensuring that you make well-thought-out, non-emotional decisions is critical to your future financial stability and happiness.
The Fairway Method™ uses the proven INR (Independently Negotiated Resolution™) process to move you and your spouse separately through decisions around money. Typically, in a marriage, there are differences in incomes and roles. This difference can often cause an imbalance of power when negotiating property division. One party may feel vulnerable to financial insecurity, and the other may feel like they might be "taken to the cleaners." These opposing positions are one of the reasons the traditional form of mediation often cannot resolve financial issues. And using lawyers to argue just further reduces the amount you get to split.
One of the keys to what sets The Fairway Method™ apart from lawyers is that before we even consider what piece of the pie you will get, both parties must agree on values. Asset values; whether real estate, investments, private shares, or properties etc. are determined before any division is completed. So much fighting is done in courts on dividing assets because the parties purposely reduce or increase the value based on who they think will get it. This is completely avoided if values are determined before who gets what is decided. Bargaining on prices is simply avoided as the outcome of this approach is a waste of time and money. The INR™ process works and has resulted in legally fair financial outcomes for 6,500 couples who have worked with our Fairway team.
The Provincial Property Division Acts in Canada set out how property is divided. In most provinces matrimonial assets are split 50/50. There are exceptions to this such as inheritances, previous marriage assets to name a few. Our experienced financial divorce resolution experts will guide you through all these decisions so you can make informed decisions that stand the test of time. At Fairway, we have a legal department where lawyers review mediated resolution plans before they are drafted into an agreement. We ensure that your legal interests and rights are protected by encouraging independent legal advice before signing your agreement.
Fairway is committed to making sure that both parties feel fairly treated regardless of financial acumen. Whether you feel like the underdog or the primary breadwinner, you will get a fair financial division because our team will not quit until we achieve that.
In most cases, assets are split 50 / 50 in Canada.
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Success comes in many forms. For us, it is hearing back from our clients and reading how we have changed their lives for the better. These stories are the reason we do what we do.
We truly appreciate the time you spent with us and the conversation greatly assisted us in coming to our conclusion of reconstruction of our relationship.
- Fairway Client, December 2019
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Frequently asked questions
Property Division is governed at a provincial level. The federal Divorce Act does not have provisions for property or debt at the time of a marriage breakdown. Each province sets out the laws for the division of property and liability in their respective acts. Some, but not all regions, have common law legislation. While each province’s legislation is similar, there are some significant differences.
Decisions need to be made about property and children during a marriage or common-law breakdown. Unfortunately, there are no concrete rules regarding property division, which can result in lengthy conflict if not managed properly.
Most provinces start with the premise of 50/50 for matrimonial assets, but it is more complicated than that. A range of complexities from pre-marriage assets, inheritances, ownership of property, pensions, and businesses make it more difficult to divide. For example, in some provinces, the matrimonial home may be partially exempt, and in others, it is not. It is for this reason that getting professional advice is essential. Also, this is why there is an increase in the number of cohabitation and prenuptial agreements entered.
Each of the provincial family and property acts, differ slightly with how pre-marriage assets (businesses, home, investment, etc.) are handled. There is a provision for inheritances as well. The bottom line is that this area is complex and getting proper direction and advice makes sense. If you are concerned and not yet divorced or married, having a prenuptial or mid-nuptial agreement set out the terms is a good idea. If you are now getting a divorce without a pre-marriage agreement, then the recent court cases and the laws will lay the foundation for how this property will be divided. Regardless, there is always a way to resolve these issues without fighting.
You do not need a lawyer to get divorced. However, you should understand the pros and cons; when hiring a lawyer is the right thing to do and the risks of doing it on your own.
It is essential that you understand the matrimonial laws in your province. A lawyer can provide you with legal education and advice on how the laws may apply to your case. Following the laws and getting legal advice is not the same as hiring a lawyer to fight on your behalf. With a solid understanding of the requirements in your province and recent court case rulings, you can be positioned to negotiate your division without using lawyers to fight. Therefore, alternative dispute resolution for divorce is becoming the go-to method for getting it done and making decisions.
If there is family violence or a contested divorce, then, unfortunately, you may have to hire a lawyer and have them do what they are trained to do – fight on your behalf.
It is smart to have a lawyer, like at Fairway Divorce Solutions, draft the separation agreement to ensure that it uses the proper legal terminology to protect you and to receive independent legal advice before you sign a contract.
Using lawyers to educate and paper the deal is where they can bring the most value. Ask about recent case rulings in the courts that would be like yours. Information like this can confirm the basis of your approach to property division. Education is key to an outcome that is in your best interest and based on the law.
If you are telling the lawyer your side of the story – remember to tell them your spouse’s side of the story, even if you do not believe it. Ask your lawyer to tell you what advice they would give them if they were their client. This insight will very quickly let you know what you are up against if you choose to hire lawyers and fight it out.
A divorce lawyers wants to win. Winning is how they measure their success. While this may be prudent in business or criminal cases, a win-lose situation in family law can be catastrophic to relationships, careers, co-parenting and property. The price can be too high, and the results do not often justify the means.
Mediation or alternative dispute resolution is the best way to resolve an issue - period. You will avoid expensive legal bills and destruction to relationships and assets. Plus, you will not waste your time fighting over and over on trivial issues.
The best approach to dividing property and assets during separation is to have a talented team that is aware of the legal landscape and understands your needs and current financial situation. This team can include, mediators, lawyers, accountants, and financial experts. Depending on the complexity of your situation the group can be small or large. Either way, dividing property without using financial expertise is not a good idea. Hiring a mediator with a strong financial background to navigate your property division, will likely achieve better results.
Arbitration is becoming more common as the backlog in the court system is getting larger. Arbitration is an alternative dispute resolution methodology whereby the parties agree to hire an arbitrator who will hear their case and render a legally binding decision. In matrimonial law cases, many couples are choosing mediation-arbitration (MedArb) as their lawyers encourage them to do so.
With MedArb, the divorcing couple hires a mediator and signs a contract that says that if they cannot reach a decision with the mediator, then the mediator can put on the arbitrator hat, and make a binding decision.
The problem with this approach is that the entire purpose of mediation is so the parties can be heard and share their opinions openly, with the help of the mediator, to achieve a win-win outcome. The couple has the protection of an open and honest process. By adding the arbitration clause, the parties always know that if they cannot agree on their own, the mediator can become an arbitrator and make a binding decision. The typical outcome of this contract is that most MedArbs end up with Arbitration because the parties are not comfortable being open and honest in the process. They know that what they say can and will be used against them. The arbitrator should not use the conversations that were had during the mediation sessions, to render a decision; however, they cannot control their unconscious bias.
Financial disputes are usually the primary cause of long drawn out litigation and court battles. In divorce cases where financial assets and property need to be divided, using someone who specializes in Independently Negotiated Resolution™ (INR) will yield better results. The step-by-step process empowers smart decisions with regard to the value of all the assets and property division. The job is not only to help you divide the pie but also to preserve your wealth, protect your assets and provide long-term security.
We want your decision on property division to stand the test of time. Given the complexity of many clients’ financial situations (business, trust accounts, options, SARS, RSU’s, shareholder agreements, real estate, family business, etc.) you cannot afford to spend time feuding when your time can be better spent analyzing and making sound decisions.
Our resolution experts have a strong financial background to ensure your assets are divided fairly and smartly. We use a mediation methodology that is directive and provides that both parties understand the law and the best way to distribute property, assets, and debts.
The Fairway INR process is designed to:
- Protect your assets, so they are split in two and not in three ways
- Ensure you understand the entire financial picture
- Agree on values before you decide who gets what
- Use experts to determine values so avoiding needless fighting
- Avoid long-drawn-out expensive disclosures
- Involve accountants and tax experts for sound decision-making
- Consider both short- and long-term implications of financial division
- Empower those who are less comfortable with numbers and financial decisions
- Base all decisions on the Divorce Act", provincial family and property legislation and relevant court decisions
