According to Statistics Canada, more than 840,000 people identify themselves as being separated from their spouse and another almost two million people are divorced. Divorce is the legal process for terminating a marriage, but there are reasons two people who are not getting along might decide to wait and not get a divorce. For them, separation could provide the time apart to reflect and decide if the relationship can or should be saved. Here are some tips to ensure that your legal separation is successful.
Understand the concept of being separated
Unlike a divorce that must go through the court to obtain an order signed by a judge ending your marriage, separation is accomplished by living separate and apart from your spouse without the need to obtain court approval or the consent of both spouses. The reason the term “legal separation” is technically incorrect is because of the lack of a court action being required for someone to be separated.
In fact, living separate and apart can be accomplished without the necessity of one of the parties moving out of the house. Parenting concerns or financial constraints could force couples to decide to separate without one of them moving out. All the law requires is that a couple separating while continuing to reside in the same home maintain separate lives. For example, they cannot take meals together, sleep in the same bedroom or engage in activities normally associated with being married.
Do you need a separation agreement, and what to include?
Separation encompasses much more than a couple living apart. Other issues that arise in a typical family situation when people decide to go their separate ways include:
- Division of property you and your spouse own together and separately
- Child custody and parenting
- Child support
- Spousal support
- Division of debts and other financial obligations
- Rights to pensions, registered retirement savings plans and other types of retirement plans
Resolving these and other issues related to the marriage and your family now instead of later avoids conflicts and disputes that could end up in court. A negotiated agreement is a better way to deal with family issues than relying upon a judge to decide them through a formal court proceeding that take time and can be costly.
It is always better to settle matters directly with your spouse through negotiations than to have a decision forced upon you by a court. Reducing the terms of your agreement to writing is the best course of action in order to ensure that it can be enforced in the courts. Proving a verbal agreement can be difficult if not impossible. Another benefit of having a written agreement with your spouse on family and financial issues is that it expedites the process for obtaining a divorce if you or your spouse elects to file for one at a later date.
Speaking with a lawyer
A separation agreement is a formal, written contract containing the terms and conditions agreed upon by you and your spouse. While the law does not require the services of a lawyer to negotiate and draft a separation agreement, having one to look out for your interests is advisable. For example, your lawyer will ensure there is full and complete financial disclosure before recommending that you sign a separation agreement. Only with honest and complete disclosure of your spouse’s income and finances can you be in a position to make an informed decision about the terms that you agree to in a separation agreement.
Whatever you agree to in a separation agreement affects you for years to come both financially and in terms of your relationship with your children. As a general rule, judges are reluctant to change the terms of a freely negotiated agreement unless you can prove your spouse gave false or misleading financial information upon which the agreement was based.
The lawyer providing advice and guidance during the planning of your separation will make certain your separation agreement contains language that is clear and unambiguous. This is important to ensure it is legally binding and enforceable in court should your spouse ever fail to comply with it.