When a married or common-law couple separates, there are three general issues that need to be considered and settled: division of property, spousal/common-law support, and children’s issues.
Spousal/Common-Law Support
Married and common-law couples have a legal duty to support each other financially. After separation, the spouse with the higher income may be required to make support payments, either in a lump sum or in monthly payments. These monthly payments may be for a fixed period of time or for an undetermined length of time. The spouse that is receiving the payments must make a concerted effort to become financially self-sufficient if possible. The longer the couple was together before separation, the more likely there is for support to be payable, and for a longer period of time.
Many factors are taken into consideration when determining whether or not spousal support is payable. These include the following:
- The length of time the couple cohabited;
- The functions performed by each party during cohabitation;
- The existence of any orders, agreements, or arrangements relating to support;
- The ability to pay;
- The ability of a spouse to become financially independent;
- The financial need of each party.
Children’s Issues
There are two legal issues surrounding children:
- Custody
- Child support
Custody
Custody can be either sole, joint, or shared. According to the law, the children’s best interest is always taken into account when deciding custody. Many factors are part of this decision and include the following.
- History – What is the history of each parent’s involvement in raising the children? A parent who has been primarily involved in taking care of the children will likely continue to have primary care and control of the children after separation.
- Are the parties prepared to work together and co-operate?
- Is one parent attempting to deny contact between the other parent and the children? In this case, the parent who is more cooperative and facilitates contact may retain custody.
Mediation is often used to arrange for a custody agreement.
Child Support
Child support usually continues until the age of 18. After 18, child support may still be payable, particularly if the child attends an educational institution on a full-time basis. There may be factors that may need to be reviewed to decide if child support should continue or not.
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