Separation Agreement: What You Should Know
If you live in Canada and are considering separating from your spouse, there are several things you should know. First, there is no such thing as a formal “legal separation.” As soon as you start living apart, you are considered legally separated. There is no time limit for being separated, and you will not eventually be considered legally divorced unless you actively file for divorce. However, you must be separated for a full year before you are permitted to file for divorce unless adultery or cruelty are the grounds for divorce.
What Is a Separation Agreement?
Although it is not required, many people choose to file a separation agreement, which is a legally binding contract. It covers the rights and responsibilities of both spouses regarding property, debts, spousal support, and child custody/support. Here is what you should know.
A separation agreement may be drafted by a lawyer, or by the separating spouses themselves without legal counsel. In many cases, it is best to go through a non-binding negotiation process or mediation process, in which a neutral third party will help the parties reach a fair and equitable agreement that is also written in such a way as to be enforceable. Note that courts will not accept terms that are clearly unreasonable, but they are otherwise unlikely to change any terms that have been agreed upon in writing even if they are unfair.
Parts of a Separation Agreement
Although each couple’s situation is different, all Canadian separation agreements must contain specific information. Below are a few topics you should be sure to cover. Other items may also be included, depending on the specifics of your financial situation.
Each spouse’s full legal name
Date of separation
Children’s Concerns (If Applicable):
Who has primary custody
Who children will live with and what access the other spouse has
How much child support will be paid and when
When child support will end
Whether spousal support will be paid or waived
If paid, by which partner, how much, when, and for how long
Criteria for ending spousal support
Full list of property and who gets which items
Home Ownership (If Applicable):
Who will live in the house
Who pays the associated bills
Whether the house will be sold, and how proceeds will be divided
Full list of debts and who is responsible for which ones
Provision for debts incurred after separation but before divorce
Pensions and Other Passive Income Streams Accumulated During Marriage:
How pensions and other passive income streams will be distributed
Who has access to make changes or transfers
A separation agreement is a legally binding document that may form the basis of a later divorce settlement. It is extremely important to understand all of the relevant issues and how they affect your life and that of your children. Therefore, once you draft your separation agreement with the help of a neutral third party, it is highly recommended that you have it reviewed by a lawyer before filing.