Do You Need A Separation Agreement?
Relationships don't always go the way we expect them to. Issues beyond your control can arise that affect the strongest relationships and it may become necessary to consult a family lawyer.
Separation is very different than Divorce. During a separation, you remain legally married to your spouse even if living apart from one another. If you are considering a separation, there are some terms to be aware of. For instance, you may have heard the term, legally separated. Once you and your spouse are living apart, you are already legally separated. The term, Legal Separation, is sometimes also used to describe the settlement contract made by spouses after the Date of Separation.
Separation for One Year
You, may remain separated indefinitely, without ever needing to file for Divorce until either you or your spouse wishes to remarry. In such event, unless a Divorce is claimed on the grounds of adultery or cruelty (now a very rare occurrence), you cannot apply for the final Order for Divorce until one full year from the Date of Separation. As a result, although you may start your Divorce proceeding at any time after the Date of Separation, the Courts require you to wait one full year before applying for your final Divorce Order.
If you reconcile with your spouse after the Date of Separation for a period of time exceeding 90 days (which days need not be consecutive), the one year period may be extended to a new separation date. This one year period allows couples the chance of reconciliation and certainty that the separation is likely to be permanent.
Finally, it is not necessarily required that you and your spouse reside in separate dwellings to be separated. Being separated from your spouse simply means that you are both living your own lives, apart from one another. But it may be difficult proving the Date of Separation in the event that you continue to cohabit. As a result, it is advisable to seek legal advice on this issue.
Separation Agreement
A Separation Agreement is made after separation and is a contract between spouses. The purpose of the contract is to set out each spouse's rights and responsibilities regarding such topics as child and spousal support, Parenting Time, Guardianship, family property, family debt, excluded property and more. A written separation agreement is highly recommended given the potential difficulties in enforcing verbal agreements in Court.
When it comes to drafting a Separation Agreement, it is not advisable to use a Kit Agreement or a self-drafted agreement. It is always preferable to have a Separation Agreement drafted by a lawyer. Otherwise, it may prove both difficult and expensive to try to enforce or change your Agreement if a dispute arises later.
In any event, you should always obtain legal advice prior to signing an Agreement.
If you and your spouse are having difficulties agreeing upon the appropriate terms for your Agreement, it may be time to talk to a lawyer who can guide you through the process, promote a fair settlement and ensure that your rights are being protected. Whether you are on Vancouver Island or Northern British Columbia or anywhere inbetween, TLC Family Law Practice would be happy to talk to you. Ask about our Flat Fee estimates.