I recently came across an article by Laurie H. Pawlitza which touched on practical tips for parties going through separation and divorce. Ms. Pawlitza also discussed how implications of separating can be far-reaching.
The piece got me thinking about how, for a family lawyer, it’s second nature to imagine the possible future consequences of a separation since I’m regularly advising clients at various stages of the process. For an individual who is personally experiencing a separation or divorce, however, it can be extremely difficult to see how the decisions you make now might affect you later on. This is understandable since a separation can be emotionally and financially draining, consequently clouding your judgement at times.
With that in mind, I wanted to share some common situations we see and the implications that can follow. Before you make any decisions, take a moment and consider the following scenarios and possible consequences:
1. Unilaterally changing the locks on the family home.
As discussed elsewhere on our blog, this raises the age-old “Can I” vs. “May I” distinction. Although, technically, you can change the locks, you may not want to. Unless you and your spouse have a pre-existing agreement about how the family home will be dealt with on separation / divorce, your spouse is still technically entitled to half of the home and its contents.
A good rule is: Before you act, think about how your actions will look to a judge. A judge isn’t likely to view you positively if s/he hears that your former partner came home one day after work to find that they were locked out of the house with no access to their personal belongings and no place to go.
2. Disposing of or hiding assets in hopes that it will be unaccounted for in the division of family property.
As Shakespeare (and others) said, the truth will out.
Under the Family Law Act, each party must fully disclose to the other all of their financial information. This includes exchanging bank statements, tax returns, employment contracts, financial statements, etc. If you are thinking about hiding or disposing of assets, be aware that once you exchange financial disclosure, your ex (or his/her lawyer) will likely come across evidence that indicates you are not telling the full story. Again, how would this look to a judge?
3. Failure to pay child support.
There’s no denying it: separation and divorce can be expensive. Suddenly, you find that you have half the assets you worked so hard to acquire. Generally speaking, regardless of your financial situation, the law can be unforgiving when it comes to children. Children have a legal right to receive financial support from both parents.
If you fail to support your children after separation, the court can draw an adverse inference against you. And if you violate a court order or agreement respecting child support, your wages can be garnished through the Family Maintenance Enforcement Program. In other cases, you may end up having to pay retroactive child support.
4. The breadwinner stops depositing money into the joint account.
Generally, any money a party earns post-separation is no longer a family asset and can be used by the earning party at their sole discretion. But before you decide to stop depositing money into the joint account, consider your former spouse’s income and whether there are any support arrangements that justify you doing so. If you cut off a dependent spouse who has no other source of income, you will likely face a costly court application for spousal support.
5. Moving out of the matrimonial home.
You will often hear family lawyers say that a separating spouse should never move out of the family home. Although this is not a universal rule, there are definitely situations in which it is better to stay in the family home post-separation.
If you move out, this could affect your position with respect to shared parenting depending on whether there are any parenting arrangements in place and whether your new accommodations allows for such parenting time. Further, where both parties want to keep the house, the spouse who moves out is less likely to move back in and take possession. Finally, if you are concerned that your former spouse may dispose of, transfer or decrease the value of the family home post-separation, then it is generally best to stay in the family home to ensure that such events do not occur. (To hear more about this topic, watch our recent video blog episode with Alex Boland and Simon Kent here.)
Even if this post has helped answer some of your questions, we still suggest that you speak with your family lawyer before making any decisions to ensure you are fully-informed before moving forward.
Have questions about your separation or divorce? Contact us!