If someone is considering divorce, it is important to fully understand the different situations and terms that are involved. One question that comes up often is whether or not there is a difference between the terms “legal separation” and “divorce”. Are these simply different ways of saying the same thing, or is there more to it? Read on for a detailed explanation:
Understanding the terms
Divorce is the complete legal termination of a marriage agreement. A legal separation, on the other hand, is not. It is an agreement that allows a couple to live separately while they are still legally married.
As we have described in previous blog posts, you must complete a full year of separation prior to filing for divorce in Canada unless there have been circumstances of abuse or adultery. Alternatively, there may be any number of other reasons for why a married couple would decide to live separately for a time, even if there original intention is not to file for divorce. For example, a separation agreement can help if a couple needs some time apart to assess their marriage, or if one doesn’t want to lose certain medical benefits that are available only when they are married, or even on religious grounds.
During this time, it is a good idea to draw up a “Separation Agreement” to help define the terms of the legal separation. This contract deals with the terms for the end of the marriage – it helps both parties understand the legal arrangements. It serves as a way of protecting the interests of both parties for the time period between when they have both resolved to end their marriage and provides a framework for the parties to deal with each other moving forward. In Canada, it is common for couples separating to have a Separation Agreement in place and then follow through with the Divorce.
What is included in a separation agreement? The separation agreement will describe the conditions of child custody, access and support, division of debt and assets, as well as other common legal considerations.
You are not required by law to enter a legal separation document, though it can be very important and useful if there is a dispute or argument about the terms of the separation. It can be very difficult to protect your rights if your spouse decides to go against the terms of what amounts to only a verbal agreement.
Although it is not mandatory to consult with a lawyer when drawing up your separation agreement, although finding a legal professional to assist with your case is important for ensuring that all loopholes are protected against. Everything needs to be defined in certain terms so that there is no room for misunderstanding the document in case it ends up in a court of law. The Courts have established that agreements that are entered with individual lawyers on both sides of the separation and full financial disclosure will be upheld by the Courts as if they were Court Orders.
Why should I write a separation agreement?
The important thing to remember is that a separation agreement is a legally binding document. Getting the help of a lawyer will ensure that you have an agreement to live by; one that should act in the best interest of both parties and the children. More importantly, one that assists with how to deal with the life events that you are sure to encounter.
If the couple decides to go forward and file for divorce after the mandatory separation period, the separation agreement may be consulted to help determine the final divorce proceedings, assuming that both parties were satisfied with the conditions. For this reason, it is important to pay close attention to getting an acceptable legal separation agreement in place.
Mark Epstein is the founder of Epstein and Associates, a full-service law firm with offices in Newmarket, Richmond Hill and Barrie.
To learn more about Mark, click https://www.thedivorceangels.com/vendor/mark-epstein/