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.