From a legal perspective, a divorce is a legal end to a lawful marriage.
It is sometimes important to get a divorce quickly and at other times it is important to delay a divorce for as long as possible. For example, the Family Law Act provides for a two year limitation period to apply for spousal support or property division.
For married spouses, the two year limitation period begins to run from the date of the divorce. In the result, if a spouse gets divorced but waits more than two years from the date of the divorce to pursue spousal support or property division, they will not be able to do so under the Family Law Act. It is sometimes important to pursue a divorce right away in order to start the limitation period as against the spouse who might not otherwise pursue claims or who might delay claims.
- Only a Judge can issue a divorce upon being satisfied that the appropriate grounds for divorce are established.
- A divorce is a right of a spouse that can be delayed but not stopped.
- A husband and wife can deal with all of their legal issues without ever getting divorced if they wish.
- Similarly, a husband and wife can simply get a divorce without dealing with any other legal issues.
However, frequently, within a divorce claim, we deal with other legal issues.
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It is important to know when a divorce should be delayed. Many extended health benefit plans provide for coverage to a dependent spouse even following separation. However, many of these plans do not provide for such coverage after a divorce. In the result, if a dependent spouse wishes to continue coverage for as long as possible, that dependent spouse may wish to delay the divorce in order to continue utilizing their spouse’s extended health benefits.
Another situation in which a divorce ought to be delayed is when spouses have corporate holdings and wish to utilize tax strategies to minimize or defer taxes payable. One way of doing so is by utilizing what is referred to as "butterfly rollover" in connection with their corporate interests and utilizing the provisions of the Income Tax Act. A butterfly rollover is complicated and is a tax deferral mechanism available for so long as the spouses remain married. Once the butterfly rollover is completed a divorce can be pursued. In identifying potentially complicated tax issues, it is sometimes imperative to avoid getting a divorce.
Part of what we do is assess such issues and guide our clients through the main pitfalls of such difficulties so as to ensure their rights are protected.