If your marriage breaks down, you and your spouse will have to decide to sell or keep your home. If you choose to keep it, it becomes a question of who gets to stay in the house during the divorce.
The Family Property Act is the law in Alberta that classifies and divides family property and debts. In this post, we’ll look at what the law says about your rights and the family home during a divorce in Alberta.
Do I Have A Right To Stay In The House If We’re Getting Divorced?
Yes, you have a right to stay in the family home if you’re getting divorced even if the home isn’t in your name, unless a Court has decided otherwise. Your spouse cannot evict you.
A one-year period of separation is required to obtain a divorce in Alberta. Emotionally, staying in the house with your spouse during separation can be challenging. It may be easier if you can use a separate bedroom and set up separate bank accounts. Have a family law lawyer draft a formal separation agreement to simplify decisions about financial issues and children.
What Are My Rights If I Leave The Family Home?
Even if you choose to leave the family home during the divorce process, you do not lose your rights to the property, your children, or your assets, unless a Court decides otherwise (e.g. if you’re proven a danger to your children). When you leave, you have a right to take the following with you:
- Anything that belongs solely to you (such as clothing, personal items, or gifts)
- Anything that was exclusively yours prior to your marriage
- Any vehicle that’s registered in your name
- A reasonable amount of money from any joint bank account to support yourself
If you take your children with you, you may also take whatever is necessary to care for them, including furniture, household items (such as dishes), and a reasonable amount of money.
How Can I Take Possession Of The House During Divorce?
If you wish to take possession of the house, even if it’s not in your name, you can apply for an exclusive home possession order. The Court will consider several factors to decide, including:
- The best interests of any children living in the home
- The financial situation of each spouse
- Any evidence of domestic abuse
In addition to issuing an exclusive home possession order, the Court may issue an eviction order or restraining order to a spouse.
What Happens If I Decide To Stay In The House?
If you stay in the family home, you will need to buy out your former spouse. Typically, this will require you to qualify for your own mortgage. Once you’ve secured financing for the home, your former spouse’s name must be removed from the home’s title and released from the mortgage. This process will require fees.
Should I Stay In The House During My Divorce In Alberta?
There are many factors to consider when deciding to stay or leave the family home during a divorce. For example, consider the following:
- Additional expenses—Living separately will cost more than sharing the costs of living together. If you’re the primary breadwinner, you may have to pay for the family home and a second residence for yourself.
- Future financial obligations—The money you spend during the separation period could impact the spousal support you’ll be required to pay and the division of property later.
- Your children—Child custody and parenting arrangements can be impacted if you leave the family home. If the children stay in the home when you leave, it can imply that your former spouse is better able to care for the children, even if you simply wanted them to stay for their own stability and to minimize the impact of the divorce.
Legal Advice About Staying in the House During Divorce
The decision to stay in the family home or leave during a divorce is complex. Consult with the expert family law lawyers at Getz Collins and Associates to be sure you understand your rights and the potential ramifications of each option.