Family Law... Is Geography Relevant?

Tuesday, November 1st, 2016
Posted in: Property Division - Married Couples Family Law by Mary Jane McGinty, Counsel

Mary Jane McGinty – November 2016

Look Both Ways Before You Cross the Border

Most people would be surprised by the vast differences in family law in different geographic regions.  Even provinces or states that are side by side can have measurably different approaches to property division and spousal support on marriage breakdown.  If you are planning to move, and there is a possibility you will eventually be paying or seeking support or dividing matrimonial property, you will want to know what the law is in the place you plan to call home.

When marriages become tenuous, people sometimes choose “the geographic solution.”  The geographic solution is chosen by those who hope that they can change the quality of their marriage by changing their home/job/physical environment.  Such a move can be high impact if the geographical solution is not a solution at all.  If a marriage is failing, one may relocate to be closer to family support.  This family support may come with a price as a result of the relocation itself.

Here is a prime example:  Nova Scotia is unlike most other jurisdictions, in that business assets are exempt from division as matrimonial property.   In fact, some smart entrepreneurs plan their life around this reality, keeping as much of their net worth inside the business as possible.  But even if that business is located in Nova Scotia, if the couple moves to a place where business assets are divisible, the assets will be divided.

A well-known case in Nova Scotia had dramatic and unfortunate results for a wife who devoted her life to raising the children, and then followed her husband’s career from Toronto to Nova Scotia.  The family had organized their financial future around an asset that was acquired through the husband’s work.  The trial judge found that the $10,000,000 asset, the biggest asset of the marriage, was a business asset, and left it entirely with the husband.  In this family’s previous home province, that asset would have been divided equally.  Full stop.

In some provinces, property brought into the marriage is not matrimonial.  So, one can get married in one of those provinces, move to Nova Scotia, and find that those premarital assets are, in fact, included in the division.

The availability and quantum of spousal and child support is also an important consideration in the relocation of a marriage that is floundering.  In several of the states in the US, spousal support is a rarity, sometimes only granted to a disabled spouse.  Indiana, Georgia, and Texas are examples of this.  Some jurisdictions still consider adultery to be a bar to alimony, yet others hold that alimony ends with remarriage or cohabitation.  This is particularly true in the US, not so in Canada.

The difference from jurisdiction to jurisdiction can be huge.  For example, child support in California is ten times what it is in Georgia or Nevada.  While Indiana, Georgia and Texas are parsimonious about spousal support, in New Jersey, Vermont, and Connecticut, just a few years of marriage can result in permanent alimony.   These are just a few examples of the possible variations.

What if you already have an order for support from a Canadian court, and you are moving out of the Province in which the order was granted, either to another province or to the United States? One important question is whether that Order can be enforced in the place where you will be living.  All Canadian provinces have reciprocal enforcement provisions among themselves, and all but Quebec have reciprocity with most US states.  If your order is from Quebec, it will only be enforceable in 9 of the 50 US states.

These are just some of the many surprises one can unpack upon arrival at the new home.  Chances are that people aren’t going to live their lives around such considerations.  However, it is worthwhile to know what the possibilities are, and to consider a marriage contract to address any of those nasty surprises in a fair and reasonable way.  If you are moving for a new job, moving to be closer to family, or simply trying out the geographic solution to an unhappy marriage, be sure to consider the legal fallout from your decision to relocate before it is too late to turn back.

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