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Separation and Separation Agreements

Separation and Separation Agreements

 

 

This article provides information only, not legal advice. If you have a legal problem or need legal advice, contact us at info@logoslaw.ca or call us at 604-294-0101.

 

On Nov. 23, 2011, a new family law bill was passed in the B.C. legislature. The Family Law Act will come fully into force on March 18, 2013. The act places the safety and best interests of the child first when families are going through separation and divorce. It also clarifies parental responsibilities and the division of assets if relationships break down, addresses family violence and encourages families to resolve their disputes out of court.

 

Some of the information contained in this article will be affected by the changes in the legislation coming into force on March 18, 2013.

What is Separation?

A married couple have separated when one or both spouses makes the decision that the marriage cannot continue and communicates that decision to the other spouse. Spouses do not need to agree to separate; only one spouse needs to decide that the marriage is over.


Although a separated couple are still married to each other (a married couple remains legally married until the court makes a divorce order), separation usually involves the end of the spouse’s life

together as a couple. Most spouses stop eating together, stop doing chores for each other like laundry and cooking, and stop sleeping together.

Separation does not require that the spouses move into separate homes. Spouses sometimes stay living together under the same roof (usually in separate bedrooms) because it’s cheaper to live together with one set of bills than live apart with two sets of bills. If the spouses stay living under the same roof, they will usually move into separated beds, stop sharing meals together, stop doing chores for each other and so forth.


Separation doesn’t always mean that a couple is going to divorce. Some spouses go to counseling and use their time apart to rebuild their relationship, with the hope of eventually reconciling and resuming life as a married couple. For others, reconciliation is impossible and separation becomes the first step toward an eventual divorce.

What is a "legal separation"?

There is no such thing as a legal separation in British Columbia. There are no papers to sign to separate and you don’t need to see a judge or a lawyer to separate.
 

Do you have to think about divorce now?
If you have separated, you don’t have to think about divorce yet. Divorce is usually a fairly low priority. Most spouses have more important issues to think about, such as where the children will live, how the children’s time will be shared, whether support should be paid and if so to whom and in what amount, and how property should be divided.


When can you get a divorce?
You are eligible to apply to court for a divorce order after you have been separated for one full year. Separated spouses can live together to try to reconcile for up to 90 days without interrupting the one year period of separation; if the spouses live together for more than 90 days trying to reconcile, the one year period starts again on the date of their last separation.


For information on the grounds for divorce, see “Requirements for Divorce”.


What is a “separation agreement”?
A separation agreement is the written record of how a couple has settled of the issues arising from the end of their relationship. For most spouses, these issues include:


• Who the children should live with and how decisions about the care and control of the children will be made (custody and guardianship)
• How the spouses will share the children’s time (access)
• How the spouses will cover the children’s financial needs (child support)
• Whether a spouse is entitled to financial help meeting his or her expenses, and, if so, who should provide that help and in what amount (spousal support)
• How the assets will be shared and how debts will be paid (property division)


If you can manage to settle these issues, you should consider getting a separation agreement for two reasons. First, separation agreements are legal contracts that can be enforced by the court. Second, it’s much cheaper and often quicker to resolve these issues by agreement than in court.


The care and control of children
The two of you may agree that the children will live mainly with one parent, and the other parent can have time with the children on specified days, such as alternate weekends, certain weeknights and holidays. Or, you may agree to share responsibility for looking after the children and have them live partly with each parent. There are many different types of parenting arrangements that can be agreed to in a separation agreement. You may want to get some advice first from a counsellor, a lawyer or a mediator.


Support
For more information about support, see article on “Child Support” and on “Spousal Support”. The income tax rules about support payments are important too.


The family home
A separation agreement can also say whether one spouse will get to keep the family home or whether it will be sold. Don’t forget that even if the house is in one spouse’s name, the other spouse is almost always entitled to a share in it. Some spouses think it’s best to let the parent who usually has the children stay in the house. Depending on the mortgage payments, this may be cheaper for than renting a new place. There are many choices, and a lawyer can help you decide what’s best.


Other assets
When a couple separates, each spouse has a right to a share in all the family assets. If you own other property in addition to your home (for example, a car, a cottage or investments), a separation agreement can cover how to divide these assets too.


Debts
Does the spouse who gets the use of the house have to pay the mortgage? Who pays the credit card bills? Should both spouses be responsible for all of the debts or just some of the debts? These issues can also be covered in a separation agreement.


Family businesses
If you run a business together you probably won’t want to be business partners any longer. It is important to resolve all of the financial issues relating to your business and have those dealt with in a separation agreement.


Is mediation or collaborative law a good idea?
Mediation can be very helpful if you and your spouse want to make decisions in the most cooperative way possible. A trained mediator can work with you to develop a parenting plan for the children and make other decisions. Your lawyer may or may not be with you at the mediation sessions, but if you see a mediator, it’s important that you consult a lawyer about your rights and responsibilities before signing any separation agreement.


A collaborative law approach may also be used to settle things. In this process, the spouses and their lawyers agree to cooperate and work together to negotiate an agreement that resolves the issues arising out of the separation. The agreement provides that no one will go to court or use threats of going to court. If the collaborative law process breaks down, the spouses must hire new lawyers if they want to go to court.


A lawyer should prepare your separation agreement
Separation agreements can have a serious and long-lasting impact on your rights and obligations. As a result, it’s always a good idea to have a lawyer prepare your separation agreement.  Spouses can’t have the same lawyer, however, and you should each get your own lawyers to learn about your rights and obligations and get independent legal advice about what your agreement means.


What does a separation agreement cost?
The cost depends on the lawyers you pick and how complicated your situation is. Ask your lawyer at the beginning for an idea of what it will cost. To save time and money, take as much information with you as you can when you see your lawyer. Take things like:


• Income tax returns
• Pay stubs for you and your spouse
• Documents about the house and mortgage
• Papers about other assets such as RRSPs, investment accounts and savings accounts
• Documents relating to any debts such as credit cards and lines of credit


Also, think about what your financial needs are and consider preparing a list of your monthly expenses before you go. This way your lawyer can give you informed advice about financial matters.


How long does a separation agreement last?

Most separation agreements last until you or your spouse die. Agreements that end sooner will say so.


You may need to get a court order
If you and your spouse have property or other assets and it doesn’t seem that you’re going to be able to settle things right away, it may be important to apply to the Supreme Court for a declaration under section 57 of the Family Relations Act. The date of this declaration is often the first date a judge can use to determine the value of various assets and your entitlement to them. Section 57 declarations can also help to protect your interest in the assets from your spouse’s bankruptcy or your spouse’s creditors. You should discuss this type of court order with your lawyer.


What happens if one spouse dies during negotiations?
The death of one spouse before the two of you have signed a separation agreement or a court has made a section 57 declaration can seriously affect your rights and entitlements. This can get complicated, so you should obtain legal advice from your lawyer about how best to protect yourself if there is a chance your spouse may die before the separation agreement is signed.


Summary
You don’t need a separation agreement to separate, and you don’t need to see a lawyer or a judge to separate. You and your spouse don’t even need to agree to separate. If you have separated, and if you have children or property or need financial support, it’s best to have a formal written agreement if you can reach a settlement on these issues and want to avoid going to court. If you can negotiate a settlement, you should have a lawyer prepare the written agreement and you should each have your own lawyer to give you advice about the meaning and legal effect of the agreement. For more information about separation and separation agreements, please contact us at info@logoslaw.ca or at 604-294-0101.

 

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