On May the 10th and approximately one month after learning of her husband's infidelity, Garcelle Beauvais-Nilon filed for divorce. In an email sent to the colleagues of Michael Nilon at Creative Artists Agency, she wrote:
"I found out today that my husband of almost 9 years has been having an affair for 5 years with some slut in Chicago. I am devastated!!! And I have been duped. Our boys don't deserve this."
The court documents cite irreconcilable differences as the reason for divorce.
Under Canadian law and pursuant to s. 8(1) of the Divorce Act a couple may submit an application for a divorce judgment upon marriage breakdown. Marriage breakdown may consist of one of the following:
- one-year separation
- adultery, or
Given her situation Beauvais-Nilon would be able to claim either one-year separation or adultery as a ground for her divorce. According to Canadian law, a successful claim of adultery would afford her an instant divorce and allow her to waive the mandatory one-year separation period. However, with adultery comes a high threshold that needs to be met. Case law establishes that the applicant-spouse claiming infidelity must prove to the court, on a balance of probabilities, that the adulterer had:
the opportunity for the commission of adultery, and
- slight evidence of opportunity standing along is not sufficient
an inclination to commit adultery.
- Must be more than just a warm friendship with a person of the opposite sex
- Evidence of general reputation is inadmissible, i.e. he or she has committed adultery in the past therefore he or she is more inclined to have committed adultery now.
Based on the facts available to us at this time it is difficult to determine whether or not the former NYPD Blue star has enough circumstantial evidence to show that her estranged husband committed adultery. Some examples of evidence that would help her prove her claim are:
- receipts for overnight stays in Chicago hotels
- receipts for expensive dinners for two at restaurants in Chicago
- frequent phone-calls made to the same Chicago number which belongs to the other woman implicated in the affair, and
- receipts for gifts which Beauvais-Nilon never received, etc.
Beauvais-Nilon is also seeking joint legal and physical custody of her 2-year old twin boys, Jaid and Jax. This would grant both her and her estranged husband joint decision-making ability with regards to the health, education, and the religious upbringing of their children. Also, the children would be able to spend equal amounts of time with both their parents.
The last stipulation in the divorce application submitted is that Beauvais-Nilon is unwilling to pay spousal support. Although on a moral level this may seem justifiable and acceptable since she seems to be the wronged spouse, Canadian law has a different take on spousal support. According to s. 15.2(5) of the Divorce Act, the courts will not take spousal misconduct into account when making a determination regarding support. Therefore, if this case were to be heard in a Canadian province, under the aforementioned Act, Beauvais-Nilon would not be able to make such a request unless her estranged husband was agreeable. If, on the other hand, he brought forward an application then the court would consider the means, needs and circumstances of each spouse as well as the following factors to determine whether support is warranted:
- the length of time the spouses cohabited
- the functions performed by each spouse during cohabitation, and
- any order, arrangement or agreement relating to the support of each spouse.