“I inherited money from my parents during our marriage; do I need to share that with my soon to be Ex?”
The law views marriage as an equal partnership between two individuals. In the event that a couple separates or the marriage ends, property must be divided equally and each party will be entitled to 50 percent of what was acquired during the marriage. This is the general rule however there are some exceptions.
Any property acquired during the marriage is seen as being owned by both parties and therefore must be shared equally. Any property that belonged to you prior to the marriage and was brought into the union by you remains your property. This means that when the marriage ends, you are entitled to those belongings or assets you came into the marriage with. In order to fully understand what you and your soon to be Ex are entitled to, each party must consider exceptions to the rule that will allow you to keep certain items acquired during the marriage. These items are called excluded property.
Excluded property includes gifts received, property you inherited, money received from an insurance company and money received or that you have a right to receive from personal injury. In other words, any of these items that you acquire during your marriage are yours to keeps then become shared property and you will be required to share them.
In the event that a gift is received, it is important to consider seeing a notary or commissioner of oaths and signing an affidavit. This document will ensure that any gift is not mistaken as belonging to both parties but is actually intended for one spouse. If your parents are giving you gifts in the form of money, having an signed affidavit will protect you in the event that your marriage ends and your Ex attempts to claim half of the monetary gift. It is not a required document however it is a recommended measure that can be taken to protect your property that is a gift or intended as a gift from others during the time that you both are married.
I heard that” Pre-nups” or “Marriage Contracts” never hold up in court; Is this true?
More often than not, a prenuptial agreement will hold up in court. It is extremely difficult to discredit these agreements and it is highly unlikely that a judge will determine their contents to be invalid. Prenuptial agreements are extremely important legal documents and couples that opt to have one created should take the proper steps in drafting their document. In order to understand why this is true and why some “Pre-nups” will not hold up in court, it is important to look at what a prenuptial agreement consists of and how it is formulated.
Prenuptial agreements, or marriage contracts as they are referred to in Ontario, are typically made before a couple weds. They are created for the purpose of outlining how a couple will proceed with their separation in the event that their marriage ends. They can include details such as property division, how support payments will be made and the education and religious upbringing of any children resulting from the marriage. That being said, if a couple decides that a marriage contract is right for them, they will need to see a lawyer with their respective financial information and solicit appropriate legal advice.
When the marriage contract is signed, it is assumed that each party has read the contents of the document and have each agreed to the stipulations outlined. Each party signs the document under sound body and mind and are therefore expected to abide by the provisions of the contract. In court, it will come down to the fact that both parties signed the document understanding full well what they agreed to and are therefore bound to it. If a contract is drafted poorly and can be discredited by the lawyer of a separating party, it may not hold up in court. This is rare; however it has occurred in the past. This is why it is imperative to get independent legal advice, (ILA) proper legal counsel when drafting your marriage contract.
Nicholas C. Knight is a Toronto-based mediator, negotiator, trainer, business consultant and ADR systems designer with the TAKE 2 Mediation Services. He trained over 10,000 people as a corporate trainer, and consulted on several high-end projects. Mr. Knight is currently consulting for several companies including the Ontario Real Estate College (OREA), and US based businesses. He is a principal mediator and Corporate Consultant at TAKE 2 Mediation. Through his 15 + years of professional experience, Mr. Knight has become an accomplished mediator and facilitator. Based upon his experience, he has much success at take 2 mediation and is looking to put that success to work for you.