By Jaskiran Bajwa
There can be many different reasons for ending a marriage. Obviously, it is a decision that should not be taken lightly. Ending a relationship can be traumatic so having a plan in place can help alleviate some of the stress and uncertainty, making the transition less painful.
While the decision to leave may be straightforward, the process for obtaining a separation and divorce can be complex and confusing. Many people may not quite understand the difference between the two. A separation agreement sets out the terms of your separation dealing with such issues as division of property, parenting plans and child and spousal support. A divorce is the legal severing of the marriage.
You need to be separated to obtain a divorce but you don’t need a divorce to end the relationship. However, if you want to remarry you must get a divorce.
The path you take can depend on how long you have been married. For example, if you are young and have been together for only a few years, you may not have any children and fewer assets than a couple who has been married for 30 years. Either way, you should still seek legal advice. At Demas Schaefer Family Lawyers, we are here to offer constructive and creative solutions to get through the emotional and legal challenges of separation. Indeed, it is wise to consult with a lawyer prior to separation so that you can understand your rights and prepare an exit strategy that will not prejudice you or compromise your position moving forward. Practical strategies can also be discussed to assist in these preparations.
Preparation is important
Getting a divorce is a major life decision and how you approach it is important. When you have decided that your relationship no longer works, you should start to make plans. You need to think not only about the legal ramifications but practicalities such as where you will live and what will you take with you if you are the one leaving the matrimonial home. Do you have a support system in case you need help? How will you pay your bills? Are you taking your children?
Ideally, you will have time to plan before you talk to your spouse about your decision to end the relationship. That way you are not making important decisions in the heat of the moment. Try to picture how things will look in your next life stage.
If you are in an abusive relationship extensive planning may not be possible. Remember, your first priority is your safety, along with the safety of any children. The province of Alberta offers emergency funding for people escaping a violent relationship. Those eligible can get help with expenses and other supports including emergency transportation to a safe place such as a shelter or costs to stay in a hotel or motel for a short time if shelters are full or not available.
There are also things you might not have thought about. Do you need to change your will or your beneficiaries? Getting legal advice early can help alleviate some of your concerns.
Gather financial information
Besides making decisions on your children’s welfare, deciding how to divide assets after a marriage ends may be the most contentious issue faced by a couple. That is why it is essential to collect all relevant financial details from bank account and credit card statements to information regarding investments and RRSPs. Having the proper documentation can avoid a “he said, she said” scenario in an acrimonious divorce.
Pension statements and documentation proving ownership of automobiles or personal assets such as artwork or jewelry is beneficial as well. It is also important to document all debts, such as mortgages or lines of credit, to get a complete financial picture. Did you bring assets into the relationship and if so, can you prove you are the sole owner?
Both you and your former partner have an obligation to disclose all relevant financial information in a statement that must be sworn or affirmed. It is against the law to provide information you know is untruthful or omit details relevant to your financial situation.
You should make copies of all important documents. The more information you have, even if it seems trivial, the better off you will be.
Date of separation
The date of separation is the date a marriage or common-law relationship ends and it can have an impact on a number of issues. To be legally separated you must prove you are living separately and apart from your partner for the purpose of dissolving the relationship. It is possible to live in the same home and be legally separated if you are not seen as a couple. However, if you share a bed, prepare and eat meals together or maintain joint bank accounts it could be challenging to prove you are separated.
To obtain a divorce you must be separated for at least one year unless you can prove your spouse committed adultery or has been physically or mentally cruel. This can include violence, constant verbal abuse, excessive drug use or drunkenness.
It should be noted that in Alberta you are allowed to resume your relationship with your spouse for up to 90 days during the separation period without having to restart the one-year separation timeline. The date of separation could come into play in matters of family property, particularly if you were unmarried and separated prior to January 1, 2020.
You do not have to wait until the one-year separation period ends before starting legal
proceedings or settling issues such as parenting or the division of family assets.
Talk to your spouse
Telling your partner that you have decided to end your relationship can be difficult but there are issues you need to discuss. If you have children, you will need to decide how you will make parenting decisions, where they will live and how to share parenting time and responsibilities. How will weekends, holidays and vacations be handled? Will the children still have access to grandparents and other relatives? Remember, the children’s best interests will be foremost in any decision the court makes in your separation or divorce.
You will also need to discuss how to divide any assets and debts you share. If you have property, such as a matrimonial home, will it be sold and how will the proceeds be divided? Do you have financing in place to be able to take over debt associated with any asset you may wish to retain? If you have a business enterprise together will you both retain ownership? Will one spouse be entitled to support?
We can help with your plan
People typically don’t plan to fail but sometimes fail to plan. Of course, having a plan does not always ensure success but being prepared can make your life much easier when you decide to end your relationship. At Demas Schaefer Family Lawyers, our team of experienced professionals is here to guide you. We offer a free 15-minute telephone or video consultation to discuss your case and explain your options. Contact us today for an appointment.