There are many things to consider before moving out. Approximately five million Canadians have hit a rough spot in a marriage made the decision to split with their spouses. Have you made the decision, either on your own or together with your spouse, to separate? There are a few things you should take into consideration. Therefore, plan before moving out of the house to ensure that you do not jeopardize your legal rights. This is particularly true with regard to your access to and relationship with your children.
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Living separate and apart from your spouse might not mean moving out
Only divorce can terminate a marriage. However, a divorce requires a formal court proceeding and an order from a judge. A couple might not be ready to end their marriage. Further, they might want some time to see if they can work things out. For those couples, a separation could be the answer because it does not require a court order. Also, there is no formal legal process through the courts to do it.
A couple may separate simply by agreeing to live separate and apart from each other. It is always a good idea to settle financial and family issues through negotiation and memorializing the agreement you reach with your spouse in a written agreement commonly referred to as a separation agreement, which is a legally binding contract prepared by your lawyer.
Living separate and apart does not necessarily require that one of you moves out of the house. A separated couple can be living separate and apart in the same home provided they occupy separate bedrooms and do not cohabit in a way normally associated with a married couple.
Moving out and your rights to the matrimonial home
Neither you nor your spouse can force the other to move out of the home you share as a married couple. Whether the home you reside in is a house, an apartment, or a condominium that you own together or rent, neither of you can change the locks to deny the other one access. This holds true even if one of you moves out and the other remains in the home. This is unless there is a written separation agreement, Also, there might be a court order granting one party the exclusive right to occupancy.
The fact that your spouse owns the property does not affect your right to live there during a separation. Moving out or staying has nothing to do with ownership. Moving out does not increase or decrease your rights to share in the assets of the marriage in the event of a divorce. You do not give up any property rights by moving out during a separation.
Things To Consider Before Moving Out | Financial Considerations
Before deciding to move out during a separation, you should carefully review your income and financial situation to determine if you can afford to do so. Moving out means having to locate and pay for a suitable house. This could be an issue if you and your spouse own the matrimonial home with a mortgage payment that must be made each month.
Other articles you will want to read:
- What Divorce or Separation Paperwork Can You Do Yourself?
- 5 Steps To Take To Prepare For A Divorce or Separation
- How Does Legal Separation Work?
Relationship with your children
If you and your spouse have children together, you must take into consideration the effect of moving out during a separation could have on your relationship with them. Unless the parties in a divorce proceeding settle the issue of child custody and access to the children between themselves, courts using the following criteria to decide custody:
- The relationship each parent has with the children
- The parent who has been the primary caregiver
- A parent who can offer stability to the children
- Future plans of each parent for the care of the children
- Plans for maintaining parent-child relationships in the future
Unless there is a separation agreement resolving child custody issues, you must take into consideration the effect of moving out of the home on your ability to maintain a stable relationship with your children. Your decision to move out should only come about after careful consideration of how it will affect each of the criteria a judge uses to decide custody in a divorce.
A consultation with an Ontario family lawyer is essential before moving out during a separation. You need to know your rights and how moving out will affect them.
What You Need To Know About Separation in Ontario
Are you looking for separation in Ontario? Your marriage vows might have included “till death do us part,” but you and your spouse need time apart. It might come as a surprise to learn that separating from your spouse does not involve any court proceedings or legal formalities. Separation occurs as soon as a couple lives separate and apart from each other. As simple as it might appear, legal issues, including child custody and parenting plans, should be addressed before the parties actually separate to avoid acrimonious disputes later.
Our lawyers mostly work with clients online. However, most of our lawyers have offices that you can go to. We do however have lawyers available for the court (in person) in Toronto and Ottawa. The first step is to reach out to us. Our intake team will take your information and ask you questions. If our lawyers can help, they will call you and talk on the phone. If it sounds like a good fit, you will be able to meet with your lawyer. This can happen in person or over video conferencing.
Separation in Ontario | Things To Consider Before Moving Out
A separation occurs when a married couple, or a couple in a common-law relationship in provinces that recognize the legality of them, live separately and apart from each other. You can be separated from your spouse even though you both continue to live in the same home. You can live in the property you occupied before the separation.
The law recognizes that moving out can be a financial hardship. Further, the parties might decide that having both parents living in the same home is better for their children. As a result, living separate and apart, which is the criteria for separation, may occur even while the parties reside in the same home. As long as you and your spouse do not sleep together or share mealtimes together. Further, you won’t do any of the other things normally associated with being a married couple. You are living separate and apart under the law.
How does separation differ from a divorce?
Separation does not terminate a marriage. Parties living separate and apart from each other continue to be married to each other. If you are separated from your spouse, you cannot remarry until a divorce proceeding is begun in court. Further, a judge needs to ultimately order the termination of the marriage.
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Separation as grounds for divorce in British Columbia
The Canada Divorce Act does not permit a judge to end a marriage by granting a divorce. This is unless there is evidence proving there is a breakdown of the marriage. Living separate and apart from your spouse for at least one year is one of the grounds for divorce. The others are physical or mental cruelty and adultery.
The law encourages people to work together during their separation. They want to see an effort to reconcile and save their marriage. Therefore, you can still use separation as a ground for filing for divorce by living together during the separation. You can live together for up to 90 days during your separation and still use it as a ground for divorce. The 90 days need not be consecutive. Therefore, a couple could make multiple attempts to reconcile as long as the total number of days together during the separation does not exceed 90.
Resolve legal and financial issues through a separation agreement
A separation agreement is a written, binding contract between the parties to a marriage. It defines the rights each of them has with regard to the financial and legal issues of a marriage, including the following:
- Child custody and parental access
- Child support
- Spousal support
- Property distribution
- Responsibility for debts
The law does not require a separation agreement for you and your spouse to live separate and apart. However, failing to resolve financial and family issues through a negotiated separation agreement is risky. It leaves the decisions to the court when disputes arise. Also, the courts can decide when one of the parties begins divorce proceedings.
Things To Consider Before Moving Out | Speak With A Top Lawyer
In conclusion, there are things to consider before moving out. Afraid of moving out of the home you and your spouse lived in while together? This might happen as part of a separation. It does not jeopardize your right to share in marital property. You should speak with a lawyer experienced in separation and family law. This will help you learn more about separation. You can learn about moving out of the home and other issues pertaining to living apart from your spouse. There are things to consider before moving out. Therefore, hire a family lawyer to get legal advice before making any decisions.
The video below was created by a lawyer in the USA. But, we believe the information provides a good overview of separation. Keep in mind the law will be different in the USA versus Canada. There are also different laws depending on which province or state you live in.
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Family Law Lawyers FAQ
Can I move out?
Speak to a lawyer first.
When should I speak to a lawyer?
Before you make any big decisions.
How do I hire a family law firm?
Fill out our form and a lawyer will call you or email. That’s a good first step.
How can I prepare for the law firm consultation?
You should know what you want to happen. You will then be able to get answers to your most important legal questions.
Will I have to go to court?
Many legal issues do not go to court. It will depend on your situation.
What is the average retainer for a family law matter?
Retainers don’t matter. Instead, ask the lawyer for an estimate on how much the total fees might be. Keep in mind it will only be an estimate.