If filing for divorce, do wives get 50% of net worth after the divorce as well, or just the net worth at the time of divorce?
Is there a difference between the US and Canada?
What about property?
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3 Answers
The relevant date is rarely the date of divorce
About the relevant time, this will depend on the particular provincial statute. In British Columbia, the relevant time for identifying family property is the date of separation, not the date of divorce. See the Family Law Act, s. 84. In Ontario, the relevant date is the earliest of 1) the date of separation; 2) the date of divorce; 3) the date the marriage is declared a nullity; and a couple of other rare circumstances. See the Ontario Family Law Act, s. 4(1). In Saskatchewan, the relevant date is "the time an application is made pursuant to this Act." See Saskatchewan's Family Property Act, s. 2.
Property or value acquired after separation is only counted where it is "derived from" property that was owned by one of the spouses at the time of separation (or whatever the relevant date is in the province).
In summary, you would identify what is family property on whatever the relevant date is in the couple's province. Then you would also include any property acquired after that date if it was "derived from" the property owned on the relevant date. So, post-separation income would not become part of family property (Phillips v Saunders, 2018 BCSC 960 at para. 71. But a post-separation home acquired using equity from the family residence does become part of family property (K.P.B. v. K.E., 2019 BCCA 152).
Some additional clarifications
It is an oversimplification to say that "wives get 50% of net worth". The only sense in which that statement is correct is in that in every province, there is a presumption that there will be an equal division of what is considered family property (or in Quebec, family patrimony).
But what is included for the presumptive 50/50 division is not the entirety of the couple's net worth. The starting point is usually that all real and personal property owned on the relavant date (separation, divorce, application) is family property, including bank accounts, shares, "an interest in a partnership, an association, an organization, a business or a venture," (language taken from B.C.'s Family Property Act), real property, entitlements to retirement plans, etc. Some provinces also direct that debt also be divided equally (BC and Ontario, for example). Others do not (e.g. Saskatchewan, although debt is a factor that can be considered by a judge in deciding whether to deviate from an equal division of the family property). To determine what is family property, you must read the relevant statute in your jurisdiction.
Many things are then excluded from division, though: typically, property owned prior to the marriage by either party is excluded, settlements or awards from lawsuits, and inheritances. The family home is also sometimes treated specially, where sometimes its value is included for property division even if it were to fall within one of the normally excluded categories. See this other answer about division of the family residence in various provinces in Canada..
Second, property division is not specific to wives. Property division regimes apply to any couple who have become spouses. In all provinces except Quebec, this can happen through cohabitation in a marriage-like relationship.
In New Mexico there is no single date at which the net worth of the marriage is considered. Rather, a distinction is drawn between community property and separate property of each spouse. All community property, whenever it was earned, is subject to division, and all separate property, whenever it was earned, is not.
When a divorce pleading is filed in New Mexico it is typically filed with a separate document, a Temporary Domestic Order, that instructs the parties on what they should do while the divorce is proceeding. Among other things the TDO instructs both parties to, as soon as practical, take steps to separate their income and day-to-day expenses from the community property of the marriage. Often, each spouse will open a new bank account in their own name and use that for the duration of the divorce.
Any income from the spouse's work (salary, wages, commissions, etc.) and any debts they incur after following the TDO are considered separate property. The general effect of separating income is to split the couples' assets in three: a small pocket for each spouse to live off of, and the majority of the marriage assets which remain to be divided. In theory neither party should touch these assets; in practice that's not always possible, but any property or debts they take on are counted against their share of the final division.
However, even after separating their income, the community property of the marriage can still grow. For instance, if the couple owned real estate as community property, rents collected from it are also community property. Likewise interest on bank accounts, dividends from stocks, etc. remain community property up to the moment that they are divided. Any debts or obligations related to this property (e.g., property tax) are community debts.
As discussed in Jen's answer, the reverse is also true; separate property can be brought into the marriage or gained during the marriage. The general categories of separate property are similar: titled property from before the marriage, settlements, and inheritances. However, in New Mexico these assets must continue to be separated from the community property (e.g., proceeds from a settled lawsuit kept in a separate bank account), otherwise they will be considered "commingled". The court won't go digging into the history of a particular account or item to see how much of it might have been a separate interest - if there's any ambiguity, it goes in the community property bin.
The exact rule varies from state to state. The majority rule for property division in separate property states is "an equitable division" not necessarily exactly 50-50, as of the date of the hearing held to divide the assets, of assets and of ultimate responsibility for debts (the creditor's rights against the couple aren't changed). Also, some property may be "separate property" not subject to division.
Another answer discusses property division in community property states. Sometimes property acquired by a married couple in a community property state is divided according to community property rules even though the state where the couple now lives is not a community property state and property not acquired in a community property state is equitably divided. The doctrine that calls for this to be done treats the property acquired by the couple in the community property state "quasi-community property."
Post-divorce, alimony (also called spousal maintenance) is award in amounts and for time periods set at that hearing. This is only rarely and in exceptional cases set with a goal of matching 50% of future income (typically that would only be done in cases of a divorce where both spouses area already divorced and an equitable division of pension funds was not possible).
In addition to alimony, child support is awarded if there are minor children. This is based mostly upon the gross income of the parents and the number of children, adjusted for extraordinary expenses, and is adjusted periodically during the minority of the children.
answered Sep 5, 2023 at 15:57
