Pre-nuptial Agreements and Marriage ContractsIssues which are dealt with in a pre-nuptial agreement typically include division of assets, spousal support, and the financial contribution of the spouses to the household. Pre-nuptial agreements are particularly useful in addressing perceived inequities in the Ontario Family Law Act, which governs property division on marriage breakdown in the absence of a pre-nuptial agreement or marriage contract. One such potential inequity is how the matrimonial home is treated (see Property Division). A marriage contract is essentially a pre-nuptial agreement that is entered into after marriage.
Separation AgreementsA separation agreement is a contract or agreement which is often entered into by separating spouses. It is not necessary to enter into such a contract in order to be considered legally separated, however, this type of agreement is very useful. There is usually a significant delay from the time two people decide to separate and the granting of a divorce judgment. In the interim, there are many issues which must be addressed including property division, child and spousal support, custody and access, and possession of the matrimonial home. Where one or more of these issues exist, it is preferable to negotiate at least a temporary and, if possible, a permanent solution. The terms of any agreement reached by the parties is often incorporated into a separation agreement.
Custody and AccessOne of the most difficult issues to consider when a marriage ends is who will have custody of the children. Although most separating spouses put the best interests of the child first and resolve this issue without acrimony, sadly this is not always the case. If there are no abuse issues, it may be helpful to consider mediation to help resolve custody and access disputes. Reilly & Partners Professional Corporation does offer mediation services.
Spousal and Child SupportWhether spousal support is appropriate and, if so, how much depends on a number of factors including the length of the marriage, the income and income potential of both spouses and the assets each will have after the matrimonial property has been divided. Child support is governed by the Child Support Guidelines. The amount of support is determined by using the support payer's income to the "table amount" of support. This is the basic monthly payment set out in the Guideline tables which is based on the payer's income and the number of children for whom support is payable. In addition to table support, there are provisions in the Guidelines for additional support payments or "add-ons". These include medical expenses, post-secondary education expenses, extraordinary extracurricular activities and daycare expenses.
Property DivisionIn the absence of a pre-nuptial agreement or marriage contract, division of marital property is governed by the Ontario Family Law Act. Section 5 of the Act provides that each spouse calculates the net value of assets less debts on the date of marriage and on the date of separation. Each spouse then calculates the amount by which his or her assets increased or decreased over the course of the marriage and any difference is equalized. In other words, the spouses share what has been accumulated during the marriage. This formula is subject to certain exceptions such as inheritances and gifts from third parties. The most important exception involves the matrimonial home the value of which may not be deducted as being owned on the date of marriage. It is this exception which provides the most incentive for having a pre-nuptial agreement or marriage contract.