Top 10 Myths (ok, 17) In Family Law
November 18, 2019
By: Wendy Best
After practicing family law for almost 40 years, it is clear that there are many “myths” or misunderstandings that people have about various family law issues. I attempted to identify the 10 most common issues, but ultimately could only reduce them to 17, as briefly outlined below.
Myth #1: Fault determines rights or entitlement. If you separate because your spouse cheated on you, you don’t have to pay them support or divide your assets.
A: Wrong. Except in extremely rare exceptions, bad conduct has no effect on a person’s entitlement to support or property.
Myth #2: You need an “official” document in order for you to be “legally separated”.
A: No. As soon as one partner has decided that the relationship is over and advises the other partner or both partners have decided to separate and there is no reasonable prospect of resumption of cohabitation, you are “legally separated” (even if you later engage in occasional consensual sexual contact).
Myth #3: You need to file for a divorce before your spouse does.
A: No. Who files first is essentially irrelevant.
Myth #4: If you vacate your home after you separate, you have no rights to it.
A: Mostly wrong. Leaving your home does not disentitle you to a claim to the equity of the home or to force its sale. It might become more difficult to try and return to the home and live there.
Myth #5: I am entitled to one-half of my spouse’s assets after we split.
A: Not necessarily. Assets that were owned prior to the marriage (and still exist at the separation) and inheritances or gifts from third parties are exempt/protected assets. Also, increases in the value of these protected assets are not necessarily divided equally.
Myth #6: You only have a legal obligation to support your natural children, not your spouse’s children from a previous relationship.
A: Sorry. If your stepchildren resided with you for a period of time (not necessarily fulltime) and you treated them like they were your children (e.g. you included them on your health insurance or named them in your will), you could have an obligation to pay child support for them after a separation, even if the other biological parent is also paying child support.
Myth #7: If we’re not living together, we aren’t “common law”.
A: Nope. Firstly, Alberta family law doesn’t recognize “common law” partners. Instead, Alberta has Adult Interdependent Partners (“AIPS”) and living together is not a requirement to be an AIP.
Myth #8: You don’t need to provide financial disclosure to sign a separation agreement with your spouse/partner, you just need to agree on the terms.
A: So wrong. You will have an agreement, however if it’s later challenged it is highly unlikely the agreement will be upheld.
Myth #9: If I save money or win a lotto after I’ve separated (but before I’ve finalized any “deal”), I don’t have to share that money with my former spouse/partner.
A: Mostly wrong. Assets/debts or their values are not “frozen” at the time of separation. New assets acquired post-separation are presumed to be shared equally. However, it is potentially possible to overcome the presumption.
Myth #10: If I quit my job, I don’t have to pay support.
A: Don’t bother. The court has the power to impute an income to an under or unemployed spouse/partner, and can order you to pay support based on that imputed income.
Myth #11: If you don’t have any parenting/access time with your children, you don’t have to pay child support for them.
A: No. A parent has an absolute obligation to pay support in accordance with the Child Support Guidelines, irrespective of their relationship or parenting time.
Myth #12: I have equal parenting time. I don’t have to pay child support for them.
A: Likely wrong. Shared parenting child support obligations are complex. Often, but not always, the support is determined pursuant to the “set-off” method. If your income is lower, you will pay, but also receive, support.
Myth #13: Once your children are over the age of 18, you don’t have to pay child support.
A: Mostly wrong. Children are entitled to be supported after the age of majority if they are going to school (sometimes including graduate or second university degrees) or are physically or mentally disabled and unable to support themselves.
Myth #14: If my ex remarries or lives “common law” with a third party, I won’t have to continue to pay my ex any spousal support.
A: Mostly wrong. Remarriage or living together does not eliminate an existing support obligation. At best, it might reduce the amount of the payment.
Myth #15: You can refuse to allow a divorce to be granted.
A: No. You can potentially delay a divorce, but not prevent it. Once a judge is satisfied that proper arrangements have been made for the support of any children and the grounds for a divorce are met (generally a 1 year separation), a person is entitled to proceed to apply for a divorce, whether or not the other spouse agrees.
Myth #16: Family law rules are essentially the same in every province.
A: Definitely not. There are many differences between provinces, primarily in respect of property and spousal/partner support.
Myth #17: Family law is easy. Your friends or family that have already gone through their own separation or divorce can help you with yours.
A: Family law is not straightforward. Your friends/family can most certainly provide you with emotional support. We don’t recommend that you rely on their legal advice.
Should you wish to receive advice in respect of any of these issues, please contact our office in order to make an appointment with Wendy or one of our family law lawyers.