So, you and your partner have decided to go your separate ways. Falling out of love with someone is never easy, and it can take a very large emotional toll on you. However, instead of filing for divorce, you’ve decided to instead get a formal separation as a starting point. A divorce is when the court officially ends your marriage, whereas a separation agreement doesn’t terminate your marriage. A separation agreement is a smart decision when a married or common-law couple decides to end their relationship. It resolves all the issues on a final basis. The divorce can proceed on an uncontested basis when you are ready.
To help you start the process this is a quick list of what you should keep in mind when creating a separation agreement.
1. Finances and assets
One of the biggest concerns separating couples have is the division of any finances and assets they’ve accumulated during their relationship. This includes the division of shared debts, mortgage/rent payments, child support, and other financial obligations or asset issues. You and your partner should sit down if possible and review all outstanding debt and financial obligations. If this is not possible, you should seek legal advice or at the very least a mediator to help you through this conversation. We can help you understand the law and negotiate an agreement.
2. Children and custody
Your children are important and deciding visitation and how you will make decisions regarding the children (custody and access) can get a little messy. Your separation agreement will determine how much time your children will spend with each of you on a regular basis and on special holidays and during the summer. In addition, you have to discuss child support including the sharing of expenses such as daycare, extracurricular activities and even post-secondary education costs.
3. Spousal support
In Ontario, marriage is viewed as a ‘financial partnership’ – meaning that when a married couple decides to separate, whoever is making more financially in the relationship may be obligated to pay spousal support to their ex-partner. Every separation agreement will deal with spousal support, and if any, how much will be paid and for how long. Some couples decide a larger single lump sum payment will be made so that support is not paid monthly. Lump-sum payments of spousal support are not tax deductible but monthly payments are tax deductible to the payor and considered income to the recipient.
4. Living situation
Many separating couples will end up living in separate homes. However, in the odd chance that you and your partner cannot move out right away due to financial reasons, you will need to work out a way to eventually move out and find separate living spaces. For the time being, you will be considered roommates, but eventually, one or both parties will need to find new homes. This is an awkward stage but is sometimes unavoidable.
5. A strong separation agreement
Could you and your partner sit down at the kitchen table, write a separation agreement on a napkin, and call it a day? Technically, yes. But there a many, many risks involved with writing your own separation agreement without legal representation. Your own separation agreement may work for a short while, but it would be like putting a band-aid on a leaking pipe. In the future, if there ends up being an issue with your ex-partner for whatever reason, it’s more than likely that a homemade agreement may be thrown out in court since it may not be recognized as a legally binding contract. If you would like to make a separation agreement that will hold up in court and completely protect you and your rights, work with us at Galbraith Family Law. Our team of family lawyers have the right experience and knowledge to help you create an agreement that will work for you and will hold true down the road as well. Whether you’re just wanting legal advice or you want the help of a lawyer to facilitate the entire process give us a call at one of our offices to set up a consultation to review your options. An informed decision is always a good decision.