Our clients often ask us about the process to become “legally separated”. They are surprised to hear that there is no such thing as “legally separated”; you are simply “separated”.
We find that when clients inquire about becoming “legally separated”, they are in fact seeking a separation agreement. For those who are married and separated, they may also be seeking a divorce, which is its own process as well.
You can consider yourself “separated” as of the date of separation. Sometimes, the date of separation is unequivocally clear and agreed to by both parties. If there is any uncertainty in the date, people can look to any or a combination of the following, on this non-exhaustive list:
- The date that one spouse, or both spouses together, communicate that the relationship is over;
- The date that the spouses separate their finances;
- The date that one spouse moves out of the bedroom, or the home;
- The date that spouses stop holding themselves out as a couple to friends, family, and neighbours; and/or
- The date that spouses stop doing the things they regularly did as a couple (i.e. eat meals together, take vacations together etc.)
The date of separation will then have a bearing on property equalization, support, and divorce. To learn more about this, read our blog “The Date of Separation and Why it Matters”.
A properly drafted and executed separation agreement is a legally binding domestic contract. It sets out the resolution to the issues that arose from the separation. A separation agreement can include the parenting plan, as well as provisions relating to child and spousal support, the division of assets and debts, and the plan for RESPs, health and dental benefits, and life insurance policies. It also often includes a dispute resolution process in the event there is a disagreement about a reviewable term in the separation agreement.
A separation agreement that is based on full financial disclosure (of income, assets and debts) and signed with the benefit of independent legal advice is much stronger than one prepared and signed without these elements.
The separation agreement does not legally end the marriage. The only way to legally end the marriage is to apply for and obtain a divorce from the court. The most common ground used to obtain a divorce is to prove that you have been separated for a year. The waiting period to get the divorce begins one year from the date of separation, not the date a separation agreement is signed.
We generally recommend finalizing the separation agreement before proceeding with the divorce. The divorce process can sometimes be more difficult if there is not a separation agreement in place.
When ready, you can either jointly apply for a divorce with your spouse, or one spouse may proceed with a simple divorce. If the other spouse agrees, a simple divorce can proceed on an uncontested basis.
You can remarry only when your divorce is final.
Mediation can be a great process to negotiate the terms of a separation agreement. Our mediators are experienced family law lawyers and we are here to help. If you are in the process of separating from your spouse or considering separation, click here to schedule a free Zoom call with one of our mediators to learn more about our services and to answer any questions you may have about the mediation process.