Divorce and Separation
During your divorce and separation processes, there are several outstanding issues you must resolve either with ADR or through litigation. These include but may not be limited to: custody and access, division of property, disposal of the matrimonial home, child support and spousal support.
There is only one necessary ground for divorce, which is marriage breakdown and being separated for one year. Before granting a divorce, a court will ensure that there is no possibility of reconciliation, and that reasonable arrangements have been made for the support of any children of the marriage. If no arrangements are in place, or if the arrangements are inadequate, the court may delay the granting of a divorce until such arrangements are made.
Child Custody
It is very easy for parents to become caught up in a parenting dispute. The legal test that the judges rely on when making decisions in child custody cases is “the best interests of the child”. Regardless of the type of child custody arrangement – shared, joint or sole; it is the responsibility and obligation of both parents to ensure the best interests of the child.
There are a number of ways for parents to enforce custody and access orders in the event that the other party is not cooperating with a parenting schedule. A court order is expected to be obeyed, and failure to do so can result in serious consequences for the non-compliant parent. These consequences can include contempt proceedings, which can result in a financial penalty. Failure to abide by the terms of an order could also result in a review of the existing parenting provisions. Police enforcement of custody and access is available where a court order provides for police enforcement, or when there are reasonable and probable grounds to believe that a child is at immediate risk of harm or is being unlawfully withheld.
Child Support
Parents have a financial obligation to provide support for their children. Usually, one parent is the primary or residential parent, where the children remain in the home and with that parent the majority of the time. The other parent pays child support to provide financial assistance for the children and cover normal expenses, like food and clothing, and has regular visitation with the children.
Who a child lives with governs who pays support. Normally, the parent with whom the child lives with less than 40% of the time will pay support to the parent with whom the child lives with more than 60% of the time (regardless of who has a higher income). However, if the child spends approximately equal time with both parents, the support payable by each parent is calculated based on their respective incomes, and whoever has to pay the higher amount usually pays the other parent the difference.
The amount of child support one parent is expected to pay the other is determined by the Federal Child Support Guidelines. The guidelines consider at how much money the payor parent earns and how many children are in the household. The guideline formula then applies to the person paying support. Usually, the income used is that set out in line 150 of that person’s most recent income tax return. Child support payments can be adjusted annually based upon the most recent tax return. After the parties agree to or the court issues a child support order, it may be modified in the future if there are changes to the status of a parent’s employment, earnings, or custody of the minor children.
Contracts and Agreements
We can help couples draft and finalize marriage contracts and cohabitation agreements that are legally binding and enforceable. In order to create an enforceable contract the parties have to be willing to openly share financial details, their current family situation, future objectives and goals, and other such needs.
One of the benefits of marriage contracts and cohabitation agreements is they are designed to be flexible to fit each couple’s specific needs. They can be drafted to include details about issues such as the division of property, child custody/access, spousal support, child support and other family law matters. While couples are sometimes able draft their own initial marriage contracts or cohabitation agreements, they often lack specific family law knowledge and expertise to know what is and is not enforceable. If you do not have a lawyer review the contract or agreement to ensure its legality, you could end up with a legally invalid piece of paper.
