Regardless whether you and your spouse agree to live separate and apart for a trial period, or whether you have plans for divorce, it’s important that you understand separation. Although you don’t need a court proceeding, agreement or acknowledgment to make your separation official, you should consult with a lawyer. An experienced family lawyer can explain not only your rights and obligations, but also the intricacies of separation agreements.
WHAT IS SEPARATION?
You’re considered separated when one of you intends to live separate and apart from the other. Most couples separate when one spouse leaves the home, although a couple can be living separate and apart while in the same home. This typically occurs when spouses can’t afford separate homes: they live under the same roof but live separate lives.
Even if you and your spouse have no (immediate) plans for divorce, you may decide to live apart for a trial period. Even in this type of informal separation, you both may have a duty to support one another and your children.
WHAT IS A SEPARATION AGREEMENT?
A separation agreement is a very detailed document that sets out the terms of your separation, including matters related to * child support * spousal support * division of property * parenting, including custody and access
In addition to these considerations, you should also give thought to
* financial disclosure
* passport provisions
* future name changes for your children
* who gets family and child government benefits and child tax credits
* what happens if one parent wants to move to another city, province or territory
* division of property (e.g., pets, tools, land, furniture, appliances, vehicles, leasehold interests, inheritances and gifts, art and jewelry, business assets)
* financial assets (e.g., pensions, life insurance policies, tax refunds, RRSPs, trusts, stocks and bonds, investments, profit sharing plans, joint and individual bank accounts)
IS A SEPARATION AGREEMENT ENFORCEABLE?
A separation agreement is legally binding and enforceable in court. To be valid and binding, you must attach your Matrimonial Property Act certificates and execute them when you sign the agreement. Doing so signifies that you
* acknowledge claims you have under the Act
* are executing the agreement separate from your spouse
To sign the agreement, you and your spouse will each meet with a lawyer. This will help to ensure that the agreement is binding in the future.
If you and your spouse are still on good terms, one of you can initially retain a lawyer to draft the agreement. Once the separation agreement has been prepared and you and your spouse agree on its terms, the other spouse will then need to meet with his or her lawyer to receive independent legal counsel. You cannot both be represented by the same lawyer. You must use different lawyers practising at completely different law firms.
It’s important that you each read and review the separation agreement with your lawyer, who will advise you of your rights and responsibilities. The agreement may include clauses that could severely limit your rights and future options. If you are unclear about what’s written in the agreement and the ways it could affect you, ask questions and be sure to discuss them with your lawyer. Be sure you understand the terms of, and the clauses within, the agreement. If you do not, or if you do not agree with them, do not sign.
DOES A SEPARATION AGREEMENT END A MARRIAGE?
A separation agreement does not end your marriage. It simply lays out the rights you and your spouse accept when you separate. Because it clarifies your respective obligations, it can be useful in avoiding misunderstandings.
ARE THERE OTHER ISSUES TO CONSIDER?
When meeting with a family lawyer to discuss a separation agreement, you may wish to discuss the following:
* Does the agreement bind the estates of the partners?
* Will life insurance will be maintained? Who is the beneficiary?
* Will you apply for divorce? If so, which spouse will make the application?
* Who will pay for the drafting and negotiation of the separation agreement?
* Will one spouse maintain medical and dental insurance for the other spouse and children?
* Does the agreement contain a clause requiring spouses to disclose and exchange all relevant financial information for the last three years?
* Will you use mediation for conflicts arising from different interpretations of the agreement? Will you use it to negotiate changes to the agreement?
* Does the agreement contain a severability clause stating that the terms of the agreement are independent of each other? In other words, is there a clause stating that if one term is deemed unenforceable, the agreement as a whole will not be deemed enforceable?
Family law is complicated. Consult with the Lift Legal team of family lawyers. We’ll work to protect your rights, help you understand what rights you may or may not be giving up, and ensure that the prepared separation agreement is legally binding, valid and enforceable.
The information on this blog and website is provided by Lift Legal for educational purposes only. It is intended to give readers a general understanding of the law, not to provide specific legal advice. Information contained in these pages should not be used in place of competent legal advice from a licensed, practising lawyer in Alberta. Furthermore, by using this blog and website, you understand that no lawyer-client relationship exists between you and Lift Legal.