Where Do I Start - Separation or Divorce?

Getting a divorce and figuring out the terms of your separation (Separation Agreement) are two very different parts of the process. A Separation Agreement would need to be completed prior to the divorce filing however if you do not have kids, have no assets/debts to divide, and there is no spousal support, the chances are you will not need a Separation agreement and you can move directly to filing for divorce. To help explain this, lets go into more detail about each one.

Separation Agreement

A separation agreement is a legally binding, detailed agreement governed by Provincial laws that uncouples all of the financial connections between two people (Married or Common Law) in addition to clearly detailing the terms that the couple has agreed to in regards to the following areas:

  • Division of what you own and what you owe
  • Co-Parenting plans
  • Child support details
  • Spousal support arrangements

A clear and detailed Separation Agreement provides you a strong framework for the future. It will help you to avoid issues going forward and it gives you a Clean Break™ to move on with the rest of your life.

There are 2 main approaches to negotiating an agreement – Mediation/Negotiation, using qualified professionals, and Traditional Litigation:

Mediation/Negotiation

Using a professional Mediator/Negotiator provides you and your spouse a neutral 3rd party who can collaboratively help you to get the information you need to know, help you communicate in a focused and respectful manner, facilitate conversations so that informed decisions are being made and fair solutions are found to meet both individual’s needs. This approach works well when you and your spouse have:

  • Different ideas on what is the “right thing” to do.
  • Ideas on how to address issues regarding children but you are not aware of all the options.
  • Multiple assets or debt (or both).
  • A cursory knowledge of the law.
  • Some tension when it comes to communication.
  • Some level of mutual respect between the two of you.
  • A desire to reduce the emotional and financial stress this will put on you and your family.
  • The intent to keep an already amicable and respectful relationship going when going through such an important transition.

The mediator negotiator will draft a report, or in Fairway language, the Independently Negotiated Resolution Plan, which will then be translated into a legally binding Separation Agreement. Depending on the jurisdiction, each party may still need to bring this agreement to legal counsel for Independent Legal Advice. Fairway works with a team of independent lawyers in your area who understand and support the Fairway INR Process.

The average cost for a separation using Mediation/Negotiation is approximately $3,000-$8,000 per person which saves you approximately 50%-60% less than the traditional legal process. The average time to complete the agreement is approximately 2–4 months.

Traditional Law

The traditional law process requires both of you to hire your own lawyer. You will have your advocate, and your spouse has theirs. There tends to be more conflict in this process than in the mediation process as the lawyers focus primarily on what is best for their client only. This approach may be your only option if you and your spouse:

  • Have very different points of view on how decisions should be made.
  • Do not agree on how to handle your assets or debts.
  • Do not communicate well now and do not want to.
  • Have little or no knowledge of the law.
  • Do not agree on what is best for the children.
  • Have no mutual respect for each other.

The average cost for an uncontested separation using Traditional Law is approximately $10,000-$15,000 per person (for a contested separation, the cost can be significantly more). The average time to complete the agreement for an uncontested separation is approximately 9–18 months.

Divorce

A divorce is the legal ending of your marriage; it is governed by Federal law and must be approved by the court. There are two types of divorce: Uncontested & Contested.

Uncontested

Uncontested divorce occurs when one spouse files an application for divorce and the other spouse does not file an answer. This fundamentally states that on failing to file an answer, the spouse does agree with the divorce. In an uncontested divorce, the spouses agree on the terms of the divorce, which most often does not require the parties to go to court. For an uncontested divorce to be valid, the parties must have resolved all issues such as child custody and access, and child and spousal support through a separation agreement or court order. An application for divorce may be submitted before the courts one year after the separation date, or earlier if there are grounds for mental and physical cruelty, or when a signed affidavit admitting to adultery is filed (consult a lawyer first).

Contested

A contested divorce occurs when the spouses disagree on some or all of the issues within the divorce. Most commonly, these disagreements include child and spousal support, division of the financial gains/loss accumulated during the marriage, and parenting schedules. Both parties then must set out their positions and views on the issues in dispute. Contested divorces may be settled a number of ways, for instance outside of court, using mediation/negotiation professionals, or through formal divorce procedures.

Uncontested divorces are generally faster and more efficient in terms of less stress and cost; whereas contested divorce is generally longer and more costly.

A person can remarry as soon as a divorce judgement has been granted.

The average cost for an uncontested divorce is approximately $1,000-$2,000. For a contested divorce, it will be significantly more.

While negative emotions can run high throughout any stage of your separation, it’s important to carefully choose an approach for your agreement that will minimize the financial and emotional stress put on you and your family. The longer a couple spends negotiating the terms of a separation agreement, the greater likelihood of negative long-term effects on you and your family.

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