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Couple getting married

If you are thinking about getting remarried, you may want to consider the impact of obligations from a prior marriage. You may also want to better prepare for a second potential separation by planning for the distribution of your assets in advance.

Spousal Support Obligations

Remarrying does not result in a cancellation of any of your current spousal support obligations. However, if there is a material change in circumstances, one spouse can apply to vary the order for support. The intention of spousal support is to compensate a spouse for the following:

  • economic disadvantages suffered through the relationship;

  • to relieve the economic hardship resulting from marriage breakdown; and

  • to promote the spouses’ economic self-sufficiency after the separation.

For example, in Morigeau v. Moorey, 2013 BCSC 1923 (CanLII), the respondent was ordered to pay spousal support to his ex-wife. When the respondent’s ex-wife entered a common law relationship with a new partner, the respondent applied to vary the spousal support order to reduce or cancel the order. The court found that cohabiting with a new partner did not result in a material change in circumstances in order to vary the support obligation. The court further found that the plaintiff assumed the role as a stay-at-home mother, foregoing economic advantage and opportunities to further her career. Additionally, as an older woman, the plaintiff had a shorter career ahead of her. As such, the respondent’s spousal support obligation was not yet satisfied.

Clearly, it is important not to assume that any change in your ex-partner’s circumstance will be sufficient to eliminate spousal support order from your previous marriage or common-law relationship. The court may find that your ex is entitled to support for any one of the reasons cited above even though your partner may be in a much better financial position than initially anticipated.

Prenuptial Agreements

If you did not consider a prenuptial agreement for a prior marriage, you may be seriously considering one for your next marriage. Prenuptial agreements, also known as “marriage agreements”, outline how the finances and property are dealt with upon dissolution of the marriage. Particularly, if you earn more than your intended spouse and you already have financial obligations such as spousal support of child support from a prior marriage, you may wish to specifically agree upon how your assets will be distributed. Further, you should keep in mind that you may have to also pay child and spousal support for your new spouse, in the eventof a second divorce.

For example, in S.L.D. v. W.A.D., 2016 BCSC 616 (CanLII), the wife brought an action for parenting arrangements, property division, spousal and child support. However, the parties had signed a prenuptial agreement dealing with all such matters. During the negotiations of the agreement, the husband disclosed all of his assets as required. Although the wife claimed unequal bargaining power, she was represented by a family lawyer during all negotiations and disclosures. Ultimately, the court found the wife was aware of what she was signing upon entering the agreement and the court found there was no reason to interfere with the agreement.

It is important to take steps to protect your assets by signing a prenuptual agreement with the assistance and guidance of a family lawyer.

Predatory Marriage

A predatory marriage occurs when someone takes advantage of an individual in a vulnerable state by coercing them to enter into a marriage. “Predators” often target the elderly to marry in order to inherit their assets and estate upon their death. They also may prey on persons who are emotionally vulnerable due to a recent separation from their spouse or due to the death of a loved one.

One possible solution to predatory marriages is to establish an alter ego trust - a special type of trust if you are age 65 or older - in which you can transfer your assets so you no longer hold them personally. This means you are entitled to the benefit of the trust assets while you are alive and you can define who receives the assets upon your death. One benefit to an alter ego trust is that the terms remain private whereas a will can become public record at the probate registry. Further, you can provide for a replacement trustee which works as a power of attorney to manage your trust assets upon your death.

Call Valerie M. Little, Family & Divorce Lawyer in Burnaby & Coquitlam

Before you enter into a new marriage, you may have questions about obligations from your prior marriage. Valerie is happy to speak with you to address your questions and concerns. She can help whether you are looking for assistance in preparing a prenuptial agreement or you are looking for guidance in applying to vary an existing spousal support order. Call family lawyer Valerie M. Little at 604-526-3333 today. She has been serving clients and helping them to resolve their family law issues in Burnaby and Coquitlam for 30 years.


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