The curtain has closed for actress, singer and songwriter Zooey Deschanel and her singer husband Ben Gibbard. According to TMZ, after three years of marriage, the couple formally divorced on December 13, 2012.
According to Canadian law, and the details provided by TMZ, the Deschanel-Gibbard divorce was fairly straightforward. There were no children of the marriage; accordingly, no child support and custody issues are called into question, and the relatively short length of the marriage can be an exception to the equal division of marital property.
Moreover, the couple waived any right to spousal support. Since Canadian courts do not order the waiver of spousal support, one would hope that the parties formalized this agreement, by way of a spousal support release, included in a written domestic agreement, entered into prior to marriage, or upon the marriage breakdown.
To an untrained eye, this divorce seems like a walk in the park, holding a glass of lemonade. However, experience has taught many family law lawyers that spousal support releases can be anything but simple, and actually quite haunting.
According to TMZ, Deschanel has an approximate net worth of $3 million dollars. Of the two celebs, many would agree that Deschanel is much closer to being an A-lister than Gibbard. Therefore, it would be wise for counsel acting for Deschanel to warn her of the fact that spousal support releases can, in fact, be over turned at a future time.
In the matter of Miglin v. Miglin, the Supreme Court of Canada dealt with the issue of when a court should order spousal support contrary to terms set out in a final agreement. Generally speaking, courts want to promote and respect fairly negotiated settlement between parties. However, as outlined in Miglin, where there is a compelling reason to go against what parties have agreed to, the courts will, in fact, do so.
For more clarity, in Miglin the court established a two-stage test that focuses on the circumstances of the parties involved. First, the court will look at the parties' circumstance when the agreement was entered into, and subsequently, the court will look at the parties' circumstance at the time of the proceedings to override the agreement.
Ultimately Miglin makes clear that a court may override an agreement where there has been a substantial change in circumstances, beyond the contemplation of the parties, to the extent where the agreement no longer reflects the parties' intention. Both employment and health related changes, were mentioned by the court as potential grounds for a 'material change in circumstance'.
This is not to say that spousal support releases are futile, as the threshold for overturning an agreement is quite high. However, parties must be mindful of the fact that people can and do change their mind, especially when unanticipated hard times come to pass. If Deschanel's career continues on the up and up, but her husband's does not, or even vice-versa, the parties should be wary that they may very well find themselves before a court, disputing their agreement to release spousal support.