If you decided to join the growing number of Canadians who have exited relationships through divorce or separation, there are important thing for you to know about your family and financial obligations before moving out. Whether you and your spouse are getting a divorce or agreeing to live separate and apart without ending the marriage, understanding the obligations the law imposes on married couples is important before taking the step of moving out of the matrimonial home. Doing the wrong thing could jeopardize your finances and your relationship with your children.
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Living separate and apart
The law considers you to be separated once you live separate and apart from your spouse. This can be accomplished by moving out of the matrimonial home. If you and your spouse decide that moving out cannot be accomplished because of inadequate finances to support two households or because having you in the home is important to maintaining your relationship with your children, you can remain in the home.
If you remain in the home during a separation, the law requires that you live separate and apart even though you are doing so under the same roof as your spouse. You must occupy separate bedrooms, take meals separately from each other and not engage in social activities, such as going to the movies or out to dinner, as would a married couple.
Moving out does not end the marriage
Moving out and living separate and apart does not end your marriage no matter how long you and your spouse remain apart. Termination of the marriage requires an application submitted to the court asking a judge to grant an ending the marriage through divorce.
You continue to be married during a separation making you subject to the obligation to remain faithful to your spouse. Establishing a romantic relationship with another person after moving out of the home could be adultery, which your spouse could use against you as a ground for filing for a divorce.
Obligation to preserve assets
Unless there is a separation agreement or a court order stating otherwise, you do not have the right to engage in conduct that would change the marital finances. You cannot empty bank accounts or incur debts for which your spouse could be held liable.
Married couples have a right to a division of property that could include property where title is held in the name of only one spouse. Negotiating and signing an agreement without spouse to divide your real and personal property before you move out of the home avoids conflicts and costly court proceedings later on.
Obligation to pay child and spousal support
Leaving home does not absolve you from the legal obligation all parents have in Ontario to provide for the financial needs of their children by paying child support. You must pay child support if the children reside with your spouse.
If your income is higher than the income your spouse earns, you could be required to pay spousal support. A long-term marriage in which your spouse remained at home caring for the children instead of working outside the home could support a need for spousal support.
How a separation agreement can help
A separation or divorce agreement resolving key family law issues should be a priority before you decide to move out of the marital home. Among the issues that should be addressed and resolved through negotiation include:
- Child custody and parental access
- Child support
- Spousal support
- Division of property
- Division of debt obligations
A consultation with a family lawyer in Ontario can provide advice about your obligations and legal rights before moving out. The lawyer also provides a valuable resource to assist in negotiating and drafting an agreement resolving all family issues.