During separation and divorce, you need to look at numerous aspects including shelter, job, children, mortgage, and more. In order to create a balance between the whole divorce process and your personal liabilities, it’s crucial to get familiar with your rights and responsibilities. Firstly, you must be aware of some separation misconceptions that plague the mindsets of Canadians reeling under separation issues.
Legal Separation and It’sVarious Aspects
Legal Separation is the term denoting the contract established between the spouses during their separation. When the spouses are living apart, they are considered as legally separated. So ignore when people give you suggestions on filing for legal separation as obligatory. There is no such legal requirement. Living separately for one year is viewed as qualification enough for separation under law.
There is no time limit for living separate and apart. You can live apart for decades without filing divorce. But don’t mistake separation for divorce. You have to acquire a legal divorce if you or your partner wants to get married again.
Primary Grounds of Divorce
- Other issues deemed appropriate by court.
- Separation Period
- Living separate and apart for more than one year.
- Cruelty – Mental or Physical; and
You need to complete one year separation period to file for divorce. You can put forward the case before the court but separation period would be required to be completed for the final divorce decree. If the divorce is filed under adultery and cruelty grounds, you might be exempted from this rule.
If during the one year separation period, the spouse gets back together for 90 days and started living apart again, that one year separation period would be declared null. Now, you are required to begin a new separation year period to qualify for filing the divorce.
Spouses can live apart at different addresses or under the same roof. Convincing the court for divorce when you live in different addresses is quite convenient. But due to any reason including finance or children, if you are living under the same roof, you need to provide sufficient proof before the court that you both never lived as a couple during the aforementioned separation period.
A separation agreement is legal contract between the spouses declaring their separation. The contract declares the rights and duties of either parties including spousal support, child custody, property and debts. It is advisable to solve your disputes cordially and avoid courts. Dispute resolution in courts can be an expensive and time consuming affair. The decision of creating a separation agreement relies on the couple. However, a drafted agreement is crucial as verbal agreements are impossible to prove before court.
It is strongly recommended to get your agreement drafted by a lawyer. Though it is not a hard-and-fast rule, only a lawyer can understand the complexities of the agreement. A lawyer would be aware of your provincial requirements. It is a must to get the agreement signed declaring the terms you have both agreed on.
Crucial items that are required to be provided in Separation Agreement include:
- Full name of Spouses
- Separation Date
- Children Issues
- Where would they live?
- Who would be the legal guardian?
- How the access will be defined?
- Who would bear the child’s expenses?
- How long would child support remain?
- Spousal Support
- Will spouse be supported? If so, for how long?
- Division of Property
- Clear division of property and items
- Who will live in the matrimonial home?
- When is the homeowner allowed to sell the house?
- How is money generated from such a sale divided?
- Who would bear which debt?
- How would debts be handled after separation and before divorce?
- Pensions, RRSPs, RESPs etc.
- How will the pensions split?
- If you have RESPs, who would be allowed transfers?
Signing a separation agreement is a pivotal step. You need to remember the terms you have mentioned and agreed on in the documents. It is always best to get the whole drafting process done by a certified lawyer. Go through the agreement carefully before signing it. There are chances that both the parties don’t agree on a certain term; in that case a mediator would help you in solving the issues amicably.
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