What is the difference between a separation and a divorce? This is one of the most common questions we receive when clients call in to book an initial consultation. In Alberta, there are three grounds for divorce, 1) you and your spouse have been separated for a minimum of one year, 2) you or your spouse committed adultery, or 3) you are your spouse treated the other with mental or physical cruelty. The most common ground for filing for divorce in Alberta is separating for a minimum of one year.
What Are the Legal Implications of A Separation
In Alberta, there are no official Court proceedings needed to make a separation legal. This is different from the United States and what you may have seen on television. In Canada, there is no trial separation vs. legal separation. Couples who choose to separate can do so at their will without needing to involve the Court. However, if you do not file for divorce you and your spouse will remain legally married. During a separation, there is still a legal obligation to support each other and any children of the marriage. If you wish to outline terms of the separation to include division of property, child support, spousal support, parenting, custody etc… you can sign a Separation Agreement.
What Does It Mean to be Separated For A Minimum of 1-Year?
A separation means you and your spouse are living separate and apart but are still legally married. As such, you have separate finances, you do not socialize together nor do you communicate about your personal lives (with the exception of co-parenting matters). In some circumstances living in separate homes is not financially possible and couples must live separate and apart within the same home. In this unique situation, the couples must prove their intent to live independently from each other. This is often shown by eating alone (not as a family), presenting themselves as separate to friends and family, ending any physical and emotional intimacy and performing their own household chores. The Divorce Act takes into consideration that couples may try to work things out during this separation period. This won’t stop the clock from running on the 1-year time frame. You’re permitted to resume living together and sharing your lives for up to 90 days without delaying your divorce in the event things don’t work out.
What is a Separation Agreement?
A Separation Agreement is a binding legal document encompassing all the issues you and your spouse need to address if you continue to live separate and apart. A Separation Agreement does not end your marriage but merely sets out your rights and obligations as two parties living apart. A Separation Agreement should include information such as how you intend the divide the matrimonial property, support obligations for spouses and children, how you intend to educate your children (including religious upbringings), a parenting plan including division of custody and any other matters you and your spouse deem necessary. We recommend including as many foreseeable issues into the Separation Agreement as possible to help avoid any bumps down the road.
If you are considering separation and wish to have a Separation Agreement drawn up, we HIGHLY recommend consulting a lawyer. A lawyer will ensure your Agreement is legally binding, includes all relevant clauses and will advocate for a fairness on your behalf. Connect with us to set up an initial consultation today.