Where to start with your separation or divorce
To determine what end result you need, find your situation below:
- I am not sure the marriage is over, but need to separate. → Trial Separation Agreement.
- I am sure I want to separate, but don’t think we can make any final decisions yet. → Interim Separation Agreement.
- I am permanently separating, but don’t know if I want to divorce. → Separation Agreement.
- I am permanently separating and want a divorce. → Separation Agreement and a Divorce Judgement.
- I am already separated, maybe for years, and we don’t have any big issues to resolve, like children or assets, I just want a divorce. → Divorce Judgement
Separation Agreement vs. Divorce
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- Parenting plans
- Child support details
- Division of what you own and what you owe
- Spousal support arrangements
- When you have completed your Separation Agreement you have a detailed structure and arrangement for the future.
A Divorce is a legal ending of your marriage, and must be approved by the court. There are two things that the court wants in place before a divorce will be granted:
1. Grounds for Divorce
- You must have been separated for at least one year; or
- Your spouse has committed adultery; or
- Your spouse has subjected you to mental or physical cruelty.
2. Proper provisions for your children
- Custody
- Access
- Support
When your Divorce is final you have permanently severed your marital relationship, and you are free to remarry.
3. Spousal support arrangements
Formalizing decisions
To further determine what end result suits your situation, consider the following:
Informal Agreement
There is no law that says you must have a Separation Agreement. It is possible for the two of you to agree to a course of action, write it down, or simply shake hands on the deal.
However, you must recognize that an informal agreement of this sort is not legally binding or enforceable. If one of you doesn’t do what they said they would, you have no legal recourse.
An informal agreement may not be enough if you are moving assets between you, possibly transferring RRSPs, sharing a pension, even changing the names on your mortgage. You may require a Separation Agreement.
But if you share a high level of trust, have few assets and debts to share, you have the option of an informal agreement.
Separation Agreement
Your Separation Agreement can either be a Trial or Interim Separation Agreement, or a Final Separation Agreement.
What makes this agreement legally binding is that it has been reviewed with you by your own independent lawyer. The lawyer’s job is to make sure that you are completely aware of what you are agreeing to and the potential implications of your agreement. The lawyer wants to ensure that your agreement, particularly on the property side, cannot be disputed at a later date on the basis that one of you “didn’t know what they were doing or agreeing to”.
A Separation Agreement can be enforced in court if one of you does not live up to its terms. A Separation Agreement allows you to move forward with your life, knowing what rights and obligations you have to your spouse and your children
The only thing you can’t do as an individual with a Separation Agreement, is get remarried!
Divorce
If you have used a collaborative, constructive process to negotiate your separation, then getting a divorce becomes a relatively straightforward paper process.
The courts want to know the specifics of your situation – like when you were married, when you separated, and where you live – and they want to know that you have made suitable arrangements for your children.
Your lawyer can prepare all the paperwork and move it through the court system for you. You can even do this all yourself – just be sure you have lots of time and patience!
Apart from delivering papers to the court house, no one “goes to court”, no one appears in front of a judge, and no one has to argue about anything! It is a process that takes anywhere from 3-5 months to complete depending on your particular situation and just how busy the court is!