When a couple decides to separate, one of the primary concerns involve what is to come of the matrimonial home. Several options exist at this point. For one, the parties may elect to have the matrimonial home sold, and to then have the sale proceeds divided according to agreed upon allotments outlined in a separation agreement. Alternatively, one party may elect to purchase the other party’s interest in the property. This process involves transferring the title of the home solely into the name of the party purchasing the interest of the other. Whichever route a separating couple elect to take, it will be outlined in detail in a binding separation agreement.
Separation Agreements and the Transfer of Matrimonial Property
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
When a couple decides to separate, one of the primary concerns involve what is to come of the matrimonial home. Several options exist at this point. For one, the parties may elect to have the matrimonial home sold, and to then have the sale proceeds divided according to agreed upon allotments outlined in a separation agreement. Alternatively, one party may elect to purchase the other party’s interest in the property. This process involves transferring the title of the home solely into the name of the party purchasing the interest of the other. Whichever route a separating couple elect to take, it will be outlined in detail in a binding separation agreement.
A separation agreement is a legal document that works to outline the terms of a separation between the parties. More specifically, the agreement will typically outline the couple’s shared assets and debts, and describe how they are to be divided between the parties upon separation. In this context, the separation agreement should also outline what the parties have agreed will happen to the material property. Many of these agreements will provide for a buyout option, where party A will buy party B out of their interest in the matrimonial property. Having a binding separation agreement in place is the first step of this process.
Once a separation agreement has been executed by the parties, both should then look to retain their own real estate lawyers to deal with transferring the title of the matrimonial property. One of the main reasons that each party is required to retain their own independent real estate lawyer is so that each party receives independent legal advice pursuant to their own unique interest in the title transfer. Each party’s lawyer will work to explain to their client the legal consequences of executing the transfer of title. The interest of each respective party depends on which side of the transfer they find themselves on.
The party being bought out of the property will work closely with their lawyer to ensure they receive prompt payment of the buyout amount outlined in the agreement proper to signing over their interest in the matrimonial property.
Conversely, the party who will have the property transferred solely into their name will work with their lawyer to ensure that they properly provide the buyout amount in exchange for sole title to the property, along with other accompanying documentation. This additional documentation will state that the other party has indeed received independent legal advice and fully understands the consequences of executing the agreement at hand.
Regardless of which side of this process you find yourself, it is important to retain the services of an experienced real estate lawyer. Your lawyer will ensure that the agreement is followed meticulously, and advise you of the various ramifications resulting from the execution of the agreement.
Articles written by Warren Gilmore:
Estate Planning for Reconstructed Families
Sale of Canadian Property by a Non-Resident
The Prudent Real Estate Investors Checklist Alternative Approaches To Purchasing A Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax
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