MenuArticle originally published in Divorce Magazine.
In most cases, mediation and collaborative law are well-suited to family disputes arising from addiction. These approaches can help reduce potential conflict with your spouse and, may allow you and your spouse to reach a resolution in a cost-effective and timely fashion.
Often fraught with agonizingly slow legal procedures and high expenses that take an emotional toll, divorce is one of the hardest things someone may experience in their life.
But when your spouse is an addict, the process can be much more difficult. Addiction affects families in many different ways, from alcoholism, drug dependency and gambling to sex addiction, and presents unique challenges especially if the addicted spouse does not seek treatment or treatment fails.
People who are addicted to substances (drugs or alcohol) often display certain behaviours that make it difficult for spouses, or even their lawyers, to interact with them. If you are still living together and your spouse is volatile, planning your exit strategy with a lawyer who has experience dealing with these issues is critical.
Other types of strategies will be needed when the addiction is related to spending, gambling or sexual activities. It is important to consult experts that have experience dealing with the issues that are present in your situation.
What You Need to Know if You’re Divorcing an Addict
How does the law apply to certain addiction issues?
When addiction is implicated in a divorce case, seek out the expertise of professionals (counsellors, lawyers and mediators) who understand the unique legal issues, especially around financial support and child custody.
Some examples of the impact of addiction on divorce include:
Children’s safety comes first
Parenting issues have to be determined on a case by case basis, but usually, judges attempt to minimize their safety risk by requiring the parent’s access to be supervised by an independent supervision center or a trusted family member. For example, in Lawrence v. Lawrence the judge ordered supervised access for an alcoholic mother, and that she take regular blood-alcohol tests.
In the case, the judge accepted that the alcoholic mother had reached a stage where she could abstain and not relapse but decided that she needed more time before she could prove that she could remain abstinent. Other measures usually required by the judge are regular drug/alcohol testing, prohibitions on the consumption of alcohol/drugs before and during access and granting custody to the non-addict parent.
Drug addiction doesn’t excuse an unemployed parent from child support
In Hutchison v. Gretzinger, the Ontario Court of Appeal decided that it would be wrong to exempt a person from a child support obligation because of a drug addiction.
An alcoholic is not necessarily entitled to spousal support
In Howe v. Howe, the alcoholic wife couldn’t hold onto a job. The judge decided that the husband did not have to pay support to her because her alcoholism was not his fault and not related to the marriage.
An addicted spouse who recklessly depleted assets during the marriage may receive unequal division of assets
Under the Ontario Family Law Act, when one spouse has been guilty of recklessly depleting assets, the court may order an unequal division in favour of the victimized spouse. To protect the assets, the act allows the court to grant a “preservation order” for safekeeping. The safekeeping is usually done by one of the lawyers or accountants.
Find the right legal system
In most cases, mediation and collaborative law are well-suited to family disputes arising from addiction. These approaches can help reduce potential conflict with your spouse and, as they are more streamlined than the court process, may allow you and your spouse to reach a resolution in a cost-effective and timely fashion.
However, when there are concerns that the addicted spouse will be dishonest, manipulative and coercive, court may be the best resolution.