His Achy, Breaky Heart

After being married for 17 years, award winning country music singer Billy Ray and Tish Cyrus have announced that they are getting divorced. According to the divorce papers obtained by the tabloids, as a part of his divorce order, Billy Ray is asking for “shared” custody of the couple’s 3 minor children. Billy Ray and Tish are parents to 10 year old Noah, 16 year old Braison and renowned actress and singer Miley Ray, who turns 18 in November. He’s also asking the court to “approve a parenting plan” to be signed by both Billy Ray and Tish and to make an “equitable distribution of the marital estate.”

In Ontario, custody is defined as the right to make important decisions about the care and upbringing of a child such as the child's religion, school and educational programs, and medical treatment. Where the parents disagree about what is best for the child, it the parent with custody who is entitled to make the final decision. In addition to the decision-making authority, the custodial parent usually also acts the child's primary caregiver.

In the joint custody arrangement, the parents share the rights and responsibilities of custody even though they live apart. Under this regime, both parents have the right to make decisions about their child. Mistakenly, it is often thought that joint custody means that both parents also have equal access to the child. However,joint custody deals with the decision making authority of the parents alone and has little influence on the amount of times the children spend with each parent. In order to be effective, joint custody requires the cooperation and works best when then there is little conflict between the parents.

In light of the fact that both Billy Ray and Tish have been actively involved in the upbringing of their children and both are agreeable to having joint custody, this parenting arrangement may be the most appropriate choice for the two. In the broadest scheme of things, a joint custody arrangement may be in the best interest of the children who will be subjected to the varying views of the media. That is, as joint custody promotes that the parents maintain a harmonious relationship, witnessing an amicable relationship between their parents may assist the children in adjusting to the separation.

As they wish to avoid litigation, it is likely that Billy Ray and Tish will devise a separation agreement that outlines the agreed upon custody and access arrangements. Unlike marriage contracts and cohabitation agreements, where custody and access to the children cannot be dealt with, separation agreements have no such limitation. However, despite the fact that a separation agreement may reflect the wishes of the parents, a court may nonetheless disregard such provisions in a separation agreement in accordance with s.56 (1) of the Act where it is in the best interest of the child to do so.

While the custodial arrangements that have been proposed by Billy Ray are unlikely to be problematic, as one can imagine, the equitable separation of the marital estate may prove to be a point of contention.

Property division can be difficult to determine. Often times people assume that the dissolution of a marriage triggers an automatic 50/50 division of all assts. Unfortunately, it is almost never that simple. In order to determine a division of property, it is necessary to calculate the value of what is called your "Net Family Property" (NFP).

In this case, what is likely to cause chaos is the difference between actual and apparent entitlement to the assets Billy Ray has acquired during the course of their marriage. In particular, as manager to daughter and famous actress Miley Cyrus, Billy Ray has often been accused of riding on his daughter's coattails and really does not have much since his career in the music industry came to an end. So, despite his lavish lifestyle, it may just end up that Tish receives very little by way of equalization as Billy Ray is said not to own much himself.

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