“Hey Siri, file my divorce.” If only it were that simple, right? When dealing with divorce or separation, the entire process may seem like a daunting experience. So it begs to ask the question, “Why can’t I just do it my self? Can I file for legal separation without a lawyer?” Technically, yes. But we will go back to that topic afterwards.
Let’s first differentiate between what it means to be divorced and what it means to be separated. Divorce is the legal termination of a marriage and allows for you or ex-spouse to remarry. According to the Divorce Act, the single fundamental ground for divorce is the breakdown of a marriage. One must demonstrate their marriage has broken down in one of the following circumstances:
- Separation for at least a year
On the other hand, separation is defined as the act of two married persons living in separate residences or separate lifestyles. At the time of separation, it is not required for a judge to tell them they are now separated. However, the spouses enter into a separation agreement or acquire an order within Ontario courts that outline each party’s rights on matters such as: child custody, child support, spousal support, property and debts. While separated you are still legally married to your spouse and at any time may make peace. It is important to note that a separation agreement is voluntary and is not compulsory under the law to enact a legal separation. As a matter of fact, you don’t really file for “legal separation”. A couple is legally separated as soon as one spouse decides to live separately.
Just because it is not required does not mean you should not have one. So what’s needed when creating a legal separation agreement? It is essential for both parties to be completely transparent regarding their finances and liabilities. Each spouse must enter the legal separation agreement voluntarily without duress. Both spouses sign a written agreement in the presence of a witness. In some instances, the legal separation agreement can be put under judicial review, especially when the rights of children are concerned, the conditions of the agreement can be reversed. Legal separation agreements can be filed with the Family Responsibility Office in situations where there is uncertainty if the other party will meet the obligations and responsibilities in the agreement. This office is financed by the Government of Ontario and is capable of enforcing support payment as per the agreement.
Let’s return to one of our initial questions, “Can I file for legal separation without a lawyer?” And as mentioned before, the answer is yes. Some couples may choose this course due to legal expenses or the notion that lawyers intensify “bad blood”, or simply because they would like to handle such private proceedings themselves. Lawyers, conversely, are trained, experienced and equipped to deal with these proceedings in an efficient and effective manner. Foremost, lawyers ensure your legal rights are protected at all times. They recognize and resolve inequitable circumstances that could result in a possible unequal distribution of resources or an agreement to a lesser amount of support.
All in all, the decision is yours. Legal separation agreements should not be taken lightly due to its complexity. It is critical that you comprehend what can and cannot be incorporated in said agreement. Apart form content, format and language of the agreement should appease the judge. Hence, it would also be a good idea to obtain examples to allude to.
Are you (and your spouse) looking to discuss filing for legal separation or divorce? Please contact ClearWay Law to book a consultation with one of our lawyers. Questions? Give us a call or complete a contact form on our website!