It’s official: Emmy-nominated actress Laura Dern and Grammy-winner
Ben Harper are back on the market. After five years of marriage and one
failed attempt at reconciliation, the divorce of Dern and Harper is final.
The couple wed back in 2005, but their marriage quickly came to a halt
in 2010 when Harper shocked Dern with divorce papers, citing irreconcilable
differences and requesting that Dern be denied
spousal support.
Unfortunately for Dern, this was not the first time she was blindsided
by the end of a relationship. Dern was engaged to Billy Bob Thorton in
2000, when he surprised her with his Las Vegas marriage to Angelina Jolie
while Dern was out-of-town filming a movie.
After their reportedly disastrous attempt at reconciliation in 2012, Dern
responded to Harper’s divorce papers, requesting primary physical
custody and joint legal custody of both children of the marriage, Ellery,
now 12-years-old, and Jaya, now 8-years-old. Dern also sought child support
and payment of her lawyer’s fees.
The terms of Dern’s and Harper’s divorce settlement are confidential,
according to TMZ. However, sources close to the couple claim that Dern
and Harper will share joint custody of Ellery and Jaya, although Dern
will spend more time with the children than Harper. This is consistent
with reports that throughout their marriage, Dern acted as the primary
caregiver for the couple’s two children. Dern also played a significant
role in raising Harper’s two other children from his marriage to
Joanna Harper, whom he divorced in 2001. Dern will receive minimal child
support, and neither will receive spousal support.
While spousal support releases are not uncommon in Separation Agreements,
it is crucial that the parties make an informed decision on the topic
after receiving independent legal advice (ILA). In Ontario, where the
parties have both received ILA and counsel for both parties have signed
the Certificate of Independent Legal Advice which is attached to the Separation
Agreement, it is difficult for the parties to subsequently wiggle out
of their agreement and seek support.
Where the parties have executed a pre-existing agreement and subsequently
make an inconsistent claim for spousal support in the courts, the court
embarks in a two stage analysis to determine whether the agreement should
be set aside. At the first stage, the court considers the circumstances
in which the agreement was negotiated in order to determine whether there
are any reasons to discount it. The court will then examine the substance
of the agreement to determine the extent to which the agreement factors
in the objectives of support: namely, balancing the economic advantages
and disadvantages of the marriage and its breakdown; accounting for the
financial impact on the custodial spouse of raising the parties’ children;
compensating a spouse for any hardship resulting from the breakdown of
the marriage; and promoting economic self-sufficiency within a reasonable
amount of time.
At the second stage of analysis, the court considers the current circumstances
of the parties; only where the current circumstances represent a significant
departure from a range of outcomes that could have been anticipated by
the parties in a manner that puts them at odds with the objectives of the
Divorce Act, will a court consider varying the Agreement. At this stage, a court will
also examine the parties’ intentions at the time of the agreement
and whether the agreement deviates from the objectives of the
Act.
Because agreements are not easily set aside, prior to entering into an
agreement, parties should independently speak with a lawyer about whether
they are entitled to spousal support, and what amount, if any, they may
be forsaking by signing a release. Only then should parties’ consider
a spousal support release.