Separation Agreement Ontario
If you and your spouse are in agreement on the terms of your separation, you are free to put your decisions into a separation agreement—which is a written contract that details the terms. Married couples, as well as those in a common-law relationship, can make a separation agreement. It is important that you understand that a separation agreement is not the same as a divorce; you must apply to the court to get a divorce after you have been separated for one year. Your separation agreement can, however, detail when and how you will get a divorce.
What makes a separation agreement legal in Ontario?
Many people are surprised to learn that you do not have to file any document to be legally separated.
You are legally separated when one or both of you decide that you wish to live separate and apart and there is no chance of reconciliation. The decision to live separate and apart needs to be communicated to your partner.
Living separate and apart can mean each person lives in their own home or it can include both people living in the same home but having separate spaces in the home and they are living separate lives. Sometimes it is complicated to decide when a couple separated and there can be financial implications to that decision. It is important you speak with a Toronto divorce lawyer to learn more about the impact your separate date can have.
Separation Agreements
Married people and common law couples can reach an agreement outlining what their rights and obligations are after separation.
This agreement is put into writing. It is important that both people understand what they are signing because it is an enforceable contract.
For an agreement to be valid, it must be in writing, signed by both people and their signatures are witnessed.
In addition, it is important that both people understand the agreement, the agreement is fair and there has been complete and honest exchange of financial information.
You should also have a lawyer review the Separation Agreement before you sign it, so you understand exactly what the Agreement says and what you are signing.
What Do You Need Include in a Separation Agreement?
Married and common law couples can explicitly outline their respective rights and obligations to one another after separation. Couples who wish to have a valid separation agreement must put the terms of their agreement into a written document, sign the document, and have their signatures witnessed by other competent adults. Spouses should ensure they understand the terms of their separation agreement since it constitutes a legally binding contract. Couples should also undertake a fair, honest, and complete exchange of financial information. Withholding material information may jeopardize the agreement’s enforceability.
A separation agreement addresses many issues raised in a divorce. For example, if a couple has children, a separation agreement would include provisions for parenting time and decision making (child custody), including which spouse will serve as the children’s parent of primary residence, if there is equal parenting time, the family’s parenting schedule, and how the couple will make decisions regarding their children’s education, healthcare, and moral/religious upbringing. A separation agreement also addresses child and spousal support, and specifies the amount and frequency of payments or whether there is a provision to expressly waive spousal support.
Separation agreements can also outline the division of the spouses’ assets and debts. For example, spouses may agree to sell the matrimonial home and set out how to divide proceeds from the sale. Spouses can outline who will pay ongoing expenses, such as mortgage payments and property taxes for the matrimonial home. The separation agreement can also describe how to divide other assets, such as vehicles, pensions, or investments. Finally, spouses can include if, when, and how they will file for divorce.
What is the Difference Between Separation and Divorce?
The most significant difference between separation and divorce involves the legal status of a couple’s marriage. In separation, a couple remains legally married, while a divorce formally terminates the marriage. When separating, a couple may establish legally binding agreements to address financial and personal issues arising from the separation, such as property division, spousal support, and parenting time and decision making (child custody) and support.
However, unlike divorce, which requires court proceedings and a court order, a separation does not require formal legal documentation. You are legally separated when one person communicates the relationship is over and there is no chance of reconciliation. This date is important because it is the day that all assets are valued.
By remaining legally married, a separated couple retains several key benefits, such as:
- Spouses may stay covered under the same insurance plans – this is largely dependant upon the terms of the policy.
- Spouses can continue to live in the same residence.
Spouses may still have the right to make medical decisions for one another if incapacitated.
- Spouses can continue to hold debts jointly.
- Spouses do not need to legally alter ownership of marital property, such as real estate.
Conversely, a divorce terminates a couple’s marriage along with all the legal benefits of marriage. A divorced couple who later reconciles and wishes to resume their marital relationship must get remarried.
Furthermore, the divorce process involves going to court to obtain an official divorce decree. In a divorce, the court will usually want to know if issues are resolved such as the division of marital assets and liabilities, spousal support, and it will not permit a divorce where parenting time and proper child support has not been addressed either by way of agreement or Court order.
Why Do You Need a Separation Agreement?
A separation agreement provides finality to the terms of your break up. Without an agreement, one person can come back practically at any time and claim that they were owed support payments. This can be a significant amount and it can go back for a number of years. The same thing can happen with property division. There are certain time limits you have to receive an equalization or property settlement. If you miss this time limit and you don’t have an agreement, you are likely out of luck. Without an agreement, you won’t know your obligations and rights. It is very difficult to move forward without resolving the issues arising from your relationship.