How property division and support are decided in a divorce

By LegalMatters Staff • During a divorce, couples will see their property divided and one may have to pay the other child or spousal support.

Property division and spousal support are rarely straightforward and may involve protracted discussions between spouses and their lawyers, mediation or even litigation.

“In Alberta, the Family Property Act (formerly known as the Matrimonial Property Act) calls for matrimonial property to be distributed equitably between spouses and adult interdependent partners (common law couples),” says Edmonton family lawyer Emily Gore. “However, that does not mean that property is divided 50/50 as that may not be fair to one party.”

She explains that all real estate acquired during the marriage is family property, such as a house, a self-contained dwelling unit, part of business premises with living arrangements, mobile homes, condominiums or suites.

“Family property also includes ‘household goods,’” says Gore. “This encompasses personal property owned by either spouse or ordinarily used or enjoyed by either spouse or other family members, for uses such as transportation, household, educational, recreational, social or esthetic purposes.”

She adds that some property is excluded from division.

“That would include property that was owned prior to the relationship, as well as money received in an inheritance or a gift from a third party to one spouse exclusively,” says Gore. “Settlement funds from a lawsuit and insurance proceeds that do not relate to the replacement of property also fall into this category.”

When it comes to spousal support, she says the court considered the financial situation, needs and related circumstances of each spouse.

“The first thing for a judge to determine is if the person asking for spousal support is entitled to spousal support,” says Gore. “If not, that is the end of the matter.”