This is continuing on the matrimonial home discussion. As my ex is making a claim on the home, I understand that my ex

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Customer: This is continuing on the matrimonial home discussion.As my ex is making a claim on the home, I understand that my ex should have been paying half the mortgage, property tax, insurance and any upkeep since the date she left the home. Is this correct?
Answered by Lawyer3786 in 8 mins 1 year ago
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Customer
This question is for Laywer3786
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Lawyer3786, Expert

Hello there. Yes and no. Let me elaborate;

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Lawyer3786, Expert

Basically you have an argument to make that the division of property must be when you guys separated and not the day of the divorce because you have been exclusively responsible for the property financially speaking since then. But if your ex had not been residing in the property, she would be able to claim occupation rent (legal term) from you for the time when you were exclusively residing in the property (and she was not able to use or benefit from the property). So basically she would have an argument counter to the fact that only you were responsible for the property. So your argument that the division should take place at separation and not the day of the divorce can really go both ways. Typically, if the set of circumstances are simple with no extenuating factors (example: you paying her on the side for her new place, etc.) then the judges would pick the time of the divorce as when the division of the matrimonial property should take place. What you can argue is at least the savings, investments and bank accounts etc. those should all be as per the separation date if it can be shown that you guys has very different financial affairs after the separation. I believe we may have discussed this part before. Does this make sense?

Customer
Occupational Rent is a bit difficult to understand. Would she not have to be contributing to the cost in order to claim occupational rent? She moved into a new place with her partner so she was not out of pocket for any additional expenses. The children have been living with my primarily so I am not sure if that factors in or not. If she is making a claim for the increase in value since and has not contributed to anything since she left I do not know how that would be fair.
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Lawyer3786, Expert

Okay, so this is going to be a bit hard to explain over text, but I will try my best.

Firstly, the law states that the division of assets generally takes place at the time of the trial/divorce (and not separation). So the presumption is in the favour of that as a starting point. So in lots of situations where it takes a long time for the matter to get to trial/divorce, it's not fair that the other party gets entitlement to something they did not contribute in but such is the law. To try to deviate from this basis you would need to argue some exceptional circumstances.

One such argument would be to claim 'unjust enrichment' (legal term) on your wife's part to get the benefit of the value when she had no contributions to it. BUT, this is where her argument of occupation rent would come into play because married couples are considered as co-owners of the property. So she would argue that she being an owner could not take advantage or use the property for her benefit and you solely drove all the benefit by staying in there solely. So while you will argue that why should she get benefit of a value after separation when she had no contribution to it, she could argue that you exclusively benefitted from the property. So, basically sure you paid all the expenses related to it but you also solely enjoyed exclusive use of it.

You could try and argue that you didn't ask her to leave and she left on her volition and went to a different place and that you were also solely responsible for the kids (if she wasn't paying child support), then the argument would be more in your favour. But if she was paying child support then that argument is significantly weakened. Basically you would be arguing against what the set law is currently (division at the time of divorce/trial), so you would need to be able to come up with some exceptional circumstances to go contrary to that if an argument is made by the other party.

Does this help clarify all this a little better?

Customer
Thank you for taking the time to explain it, it's a lot clearer. You mentioned that she would argue that she being an owner but she is not on the title or on the mortgage. Does that affect anything? I think that is my last question and I will start a new thread on another topic.
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Lawyer3786, Expert

No unfortunately her being on the title does not matter. Once the parties are married, and live in an owned property together, that property is considered as matrimonial property and the party that is not on the title automatically gains Dower Rights on that property. So, it can't be sold without the other party's consent and/or having the Dower Rights first removed by the party's consent.

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Lawyer3786, Expert

I suppose I will catch you over at the new request.

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