People always ask me, ‘when am I legally separated?’ They are expecting some sort of document or event to confirm their separation. But, it’s not that complicated. At law, you are considered legally separated when one person has formed a settled intention to separate and has communicated that to the other side. Thus, you are legally separated as soon as you say it out loud to your partner. It is important to remember when that happened because we call that your valuation day, that is the day when property is divided. There are all sorts of issues of surrounding the impact of reconciliation but that is a topic for another day.

As well, it is important to remember that you do not have to physically separate to be considered separated. In fact, many couples, for various reasons, end up living ‘separate and apart’ in the matrimonial home while they work out a resolution to the many issues that arise on separation. It is important to agree on what the date is and have a note of it. Otherwise, trying to prove what the day is can be uncomfortable due to the nature of the questions we would have to address to establish the date of separation.

In an ideal word, individuals thinking of separating should have a consultation with a lawyer before they separate. This step serves two purposes. Firstly, it may not make legal sense to separate. Separation has vast impacts on the amount of time you spend with your children, how you participate in spending time with your children, your income and your assets. If you are in financial peril at the time you are thinking about separating, the legal issues arising on separation can become much more complicated. Secondly, having a consultation with a lawyer allows you to gather everything you will need to address the issues you will be facing. For example, one of the single biggest contributors to people finding themselves in court is the lack of financial disclosure. It is not uncommon for documents to disappear after a person has announced his or her intention to separate. Or, as is often the case, one partner has been in charge of the finances and the other is largely unfamiliar with them. A lawyer can alert you to what is relevant and what information can be obtained directly from source (i.e. the bank). This homework can take a lot of the mystery out of financial disclosure. All lawyers will ask for disclosure. Every time. Disclosure allows us to give you an opinion on how much child and/or spousal support should be paid, how extra expenses should be shared and how much capital you can expect to start your new life with.

If you have separated but have not seen a lawyer, the first step should be to have an initial consultation. At that consultation, a lawyer will outline for you the issues that you can expect to deal with and a range of possible outcomes. The lawyer can also explain to you in detail the various processes that are available to you; from negotiation to court. The lawyer can also give you a rough idea of the costs of each stage. Your next step should be the mutual exchange of full financial disclosure. This disclosure should include three years worth of tax filings, details of current income, statements from all assets and debts as of the date of separation and pension or business valuations if necessary. Once you have exchanged disclosure, you and your partner should try to agree on the process you wish to engage. You do not have to deal with things all on your own but, you can do a lot on your own and save time and money.

If you have reached an agreement your next step is to document that agreement. While it may be tempting to use the precedents you find on-line, remember that those are often US focused and may not appropriately capture what you want. In Canada, property laws are individual to the provinces but other issues such as custody or child support have the same or similar treatment throughout the country. The treatment of these issues can often times be different than how they are treated in the US. If you see on on-line document that speaks to ‘alimony’ it is American and may not be appropriate. Having a lawyer prepare the separation agreement will ensure that everything is dealt with including life insurance, releases and tax issues.

After you have documented your settlement in a separation agreement (and you are correct I am not sure why it is not called a divorce agreement) nothing more needs to be done unless you wish to obtain a divorce. A divorce can only be obtained from the court but if you have dealt with all of your other issues, it is relatively easy to move forward with an uncontested divorce.

If you have any questions please reach out to us to schedule a consultation.

Ruso Law

As of September 1, 2023 we have merged with Ruso & Associates

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