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Vancouver BC Family Law Blog

Drafting property division agreements may need legal guidance

Although the popular opinion might be that common law and marital spouses have the same rights in British Columbia, there are some differences. When it comes to property division if a common law relationship comes to an end, the rights of each spouse are based on trust and an array of other factors. Under the Family Law Act, the Supreme Court may review any agreements or contracts entered into by common law spouses for fairness.

Before you enter into a common law relationship, it might be in the best interests of both parties to establish a written property division agreement. However, drafting such a contract may be worthless if it fails to comply with legal requirements that will make it valid in the eyes of the law. For this reason, the logical step might be to retain the services of an experienced family law lawyer to provide guidance and input into the drafting of an agreement between common law spouses.

Divorce can be a cooperative process to benefit all parties

There are no winners or losers when a marriage ends. In fact, the manner in which a couple conducts their divorce can make either all parties winners or all losers. While British Columbia courts aim always to do what is believed to be in the best interests of the children, the parents' intimate knowledge of the family dynamics may make them better qualified to know what is best for their children. This typically applies to circumstances free of any types of abuse or domestic violence.

No married couple ends their marriage for the fun of it -- any divorce is an emotional affair, and it may be safe to say that there will always be some matters of contention. However, families who understand that there can be ex-spouses but never ex-parents will likely choose a divorce method that may protect parent-child relationships. Fortunately, there are non-adversarial options available that allow parents be in control of decisions that will affect their post-divorce lives.

With proper planning divorce need not cause financial havoc

British Columbia residents who are considering ending their marriages and told friends and family about it have likely had to cope with comments for and against such a step. These opinions are typically based on personal experiences and not on facts. The dynamics of each marriage are unique, and the fact that a friend's financial stability was ruined by divorce does not mean it is par for the course.

There are certain steps that can reduce the financial impact of a divorce. When property is divided in divorce proceedings, it may help to have a prenup -- a marriage agreement signed before the wedding to show the assets each spouse brought into the marriage. Each spouse typically gets to keep those assets, providing personal funds were not commingled with marital assets.

Who gets spousal support and how is it calculated?

The dynamics of every divorce that takes place in British Columbia are unique, and although every lawfully married spouse is eligible for spousal support under the Federal Divorce Act, only the court can decide which spouse will receive such support and the amount to which he or she will be entitled. In many cases, the spouse whose income is significantly less than that of the other spouse receives spousal support; however, this is not always the case. Support for common law spouses is determined by the family law act of the province.

Spousal support will only be determined by the court when a divorcing couple cannot come to their own agreement about it. The object of the court will be to order compensation to the lower-earning spouse -- often the one who sacrificed earning opportunities to care for the children of the parties and the household. Typically, the support will be ordered if one party is needy and the other party has the means to provide financial assistance, with the understanding that the lower-earning party will attempt to become self-sufficient.

Flexible parenting time after divorce can benefit all

While a divorce or separation could be a tough process for British Columbia parents to go through, it is typically much more traumatising for children. Fortunately, most divorcing parents recognise the importance of equal parenting time to maintain their respective relationships with their children. Drafting a detailed parenting plan could be tricky, but help is available.

When preparing a parenting plan, it must be practical and useful; however, it must contain enough detail to avoid conflict. This document is focused solely on the best interests of the child, and parents must work their schedules around the needs and the interests of the child. The plan could specify whether they will make decisions about the child jointly or individually and how disputes will be handled. It can also detail the rights of each parent to share information about education and other matters.

Relocation: Is it in the best interests of the child?

British Columbia parents or guardians of children after divorce may find that circumstances change and reasons to relocate may arise. This could involve better employment opportunities in another province, a new lover or other reasons. If there is an order or agreement in place, the court must approve such relocation, and its primary consideration will be the best interests of the child.

Advisors say it is probably best to discuss the plans with the other parent or guardian before finalising any arrangements to relocate. If the parents can find agreement, the court is more likely to authorise changes to the guardianship and access order. Even if negotiations are not possible, the other parent must be notified, and he or she will have 30 days to file an objection with the court. The guardian who plans to move will then have to convince the court that the relocation will be in the best interests of the child.

How can parents and children protect family assets?

With the average marriage in Canada, including in British Columbia, lasting less than 14 years, it is understandable that a person who holds any assets would want to draft a prenuptial agreement. For the same reason, families who own family businesses may want their children to establish marriage agreements to protect family assets. It is not uncommon for families to lose control of their companies when one of the children divorce.

In many cases, a business can be the income source of the parents and some or all of the children. However, nobody can be forced to sign a prenuptial agreement, and advisors say it is important for parents to approach the subject in the proper way. Both parties in a marriage must know that a marriage agreement is not a one-sided contract.

The value of signing marital or cohabitation agreements

More and more couples nationwide, including in British Columbia, choose to live together rather than to get married. In some cases, couples agree to live together until they are ready to get married. Regardless of whether the arrangements are permanent or temporary, considering marital or cohabitation agreements might be worth consideration.

Although both marital and cohabitation agreements serve the same purpose -- to protect the separate assets of the two parties -- there are differences. A marriage agreement -- or prenuptial agreement -- could outline the legal relationship of a couple getting married, particularly with relation to their assets. This includes property brought into the marriage and provides direction in the way they intend to handle assets they acquire during the marriage. This is not only for property division in the event of a divorce but also if one party dies.

3 ways to protect business assets in divorce

Business owners in British Columbia who have marital problems may be concerned about the effect a divorce would have on their commercial ventures. In many marriages, family businesses are the most valuable personal assets of both spouses. To prevent having to sell the company and split the profits, here are three ways to protect business assets in a divorce.

If the company exists before the marriage, a prenuptial agreement can specify what will happen to the business if the couple should file for a divorce. With proper legal guidance, the couple can draft an ironclad marriage agreement. It must be in writing, with witnesses to confirm that it was executed voluntarily. Full disclosure of each party's assets is required, and the final document must be conscionable. 

Chats about marriage agreements are difficult but necessary

British Columbia couples who are planning to get married may be considering a prenuptial agreement. However, for some, it is a difficult subject to raise at a time when wedding arrangements and love are the primary concerns. Advisors suggest financial goals and habits be discussed at the time when the relationship becomes serious. Being comfortable talking about the subject might make it easier to discuss marriage agreements as they approach the wedding.

When it comes to the drafting of a marriage agreement, the market value of the assets of both parties, their debts, expenses and incomes must be listed. Furthermore, any possessions that have sentimental value or that the person wants to protect for children from previous relationships must be specified. A prenup can also protect anticipated riches. A person who expects an inheritance of author's royalties from books or songs written before the marriage can protect those assets in a marriage agreement.

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