Actors Charlie Sheen and Brooke Mueller have officially filed for a divorce.
Charlie and Brooke married were married in May of 2008. There are two
children of the marriage, 1-year-old twin boys, Bob and Max, born on March 19, 2009.
Their relationship took a turn for the worse last Christmas when the two were involved in an incident of domestic violence that resulted in charges of assault being filed against Sheen. Following the indecent, Sheen and Mueller signed a domestic contract settling all matters arising from their separation including the matrimonial home, equalization, child support, custody and access. The agreement gives Mueller a one time settlement of $750,000.00 in addition to $55,000.000 per month in child support. Additionally, Sheen and Mueller have decided that the children will primarily reside with Mueller while Sheen will have liberal access time them. Further, both Sheen and Mueller will have joint custody of their children.
In Ontario, parents who have joint custody of their children share the right to make important decisions about their care. While joint parenting is often misunderstood to mean that the children spend an equal amount of time with both parents, custody primarily focuses on the right to make decisions regarding the children's care, education, religious instruction and welfare and has nothing to do with how much time the children spend with each parent.
With respect to the agreement that Sheen and Mueller have come to, since both parties identify December 25, 2009 as their separation date, the domestic contract that the two executed post separation is a separation agreement. In Ontario, separation agreements are the most common domestic contracts negotiated between couples. In order for two persons to enter into a separation agreement they must have cohabited and must now be living separate and apart. Generally speaking, the courts have held that “separate and apart” means a physical separation, combined with an intent to end the marriage. This intent does not need to be shared by both parties. In some situations, spouses may even be considered to have been living separate and apart while continuing to live under the same roof.
Unlike marriage contracts and cohabitation agreements, separation agreements may include provisions for custody and access to children in addition to all the rights and obligations that can be dealt with under those contracts. Nonetheless, such provisions may be disregarded by a court where it is in the best interest of the child to do so.
While the courts in Ontario are often reluctant to vary the terms of an agreement devised by the parties, an application may be made to a court for the setting aside of a domestic contract in one of the following three instances:
- a party has failed to disclose to the other significant assets or debts that existed at the time the contract was entered into;
- a party did not understand the nature or consequences of the contract; or
- for general reasons at contract law such as undue influence, mistake, etc.
In all, what appears to be a clean break between Sheen and Mueller may not necessarily be so if either can how cause to set aside their agreement.