Separation and divorce are common in the modern world – yet, navigating such an emotional and stressful experience can be difficult when you don’t have the information you need to make informed decisions. For instance, many ask: do you need a separation agreement before getting a divorce in Ontario?
This article provides an overview of separation agreements and divorce so that you can make the right decision for your family.
Separation vs. Divorce in Ontario
Separation and divorce are often used interchangeably. However, for legal purposes, they refer to two different things.
Separation occurs when two people – married or in a common-law relationship – decide to live apart. The separation ends your legal relationship if you’re in a common-law relationship.
However, if you’re married, simply living apart (or “separating”) doesn’t end your marriage – you will need to apply to the court for a divorce to finalize your separation.
What is a Separation Agreement?
A separation agreement is a legal contract outlining how you have decided to resolve issues relating to your separation.
Usually, a separation agreement will cover topics such as the following:
- How property and debt will be divided
- Custody and access to children
- Spousal and child support payments
- Living arrangements
Separation Agreements and Common-Law Couples
In Ontario, common-law couples who separate are not legally required to split their property.
However, separated common-law couples may choose to enter a separation agreement to outline how they wish to divide property or handle custody or support payments. They also help outline the parties’ positions – and preserve the parties’ rights should disputes arise regarding entitlement to property, custody, or support payments down the road.
Separation Agreements and Married Couples
Unlike common-law couples, married couples have certain entitlements to property when they separate.
While there are many factors at play when dividing property, generally, any property acquired during a marriage must be split equally, along with any increase in value of property owned before the marriage (for example, if one spouse owned the land before the marriage, and that land increases in value).
Despite certain rules applying to the division of property for married couples, a separating married couple may choose to enter a separation agreement to outline the division of property, custody, and support payments. And as noted above, they also help outline the parties’ positions and preserve their rights in case of a later dispute.
Separation Agreements: Do I Need One for My Divorce?
So, do you need a separation agreement before divorce in Ontario?
In the context of separation – whether you’re married or common law – you are not required to prepare a separation agreement – most of the time. However, keep in mind that there are several circumstances where the courts or the parties will require you to have one.
Below, we’ve outlined a few situations where a separation agreement is beneficial or required.
Separation Agreements and Child Support
Suppose you are applying for divorce and have a child or children. In that case, the court will likely require a separation agreement outlining child access, decision-making, and support before granting a divorce order. Therefore, preparing a separation agreement in advance of your divorce application is essential.
Separation Agreements and Sale of the Family Home
In some circumstances, you may require a separation agreement to sell the family home after a divorce. To determine whether a separation agreement will be required to sell your home, consult with an experienced real estate lawyer.
Separation Agreements and Title Transfers
If you are transferring the title or removing one spouse from the title, you may need to provide a separation agreement. To determine whether a separation agreement will be required to sell your home, consult with an experienced real estate lawyer.
Separation Agreements and Mortgages
If you are applying for a new mortgage after removing one spouse from the title, you must provide the mortgage provider with a separation agreement.
Separation Agreements and Contested Divorces
Unfortunately, separating spouses can’t always agree on the division of property, support, or access. In those cases, the parties will typically proceed with a contested divorce application instead.
One party will file an initial Divorce Application, and the other party will file an Answer responding to the filing party’s position. These cases may ultimately go to court but are often resolved before a court hearing through alternative dispute resolution procedures like mediation or arbitration.
If a contested divorce goes to court, a judge will have the final say regarding the division of property, support, access, and other contested issues. Alternative dispute resolution processes allow the parties to work together with their lawyers and the help of a mediator or arbitrator to agree.
Can I Amend a Separation Agreement After Signing It?
Assuming that the parties agree, you can change your separation agreement whenever you want to by creating an addendum to the separation agreement.
What happens if one party wants to amend the separation agreement, but the other refuses? Again, you may be able to turn to alternative dispute resolution – but if that doesn’t resolve the dispute, you may need to apply to the court to have the separation agreement varied or set aside.
Remember that the court sets a high bar for varying or setting aside separation agreements. You cannot simply apply to vary or set aside a separation agreement because you are dissatisfied with the terms.
Bonus: Separation Agreements and Independent Legal Advice
One additional consideration when preparing a separation agreement is obtaining independent legal advice. Typically, each spouse will need to speak with another lawyer to obtain advice on the separation agreement before signing it (even if they have hired one family law lawyer to draft the separation agreement).
Independent legal advice is required to ensure that the parties understand the terms and implications of the separation agreement and protects the parties from being misled.
As separation agreements significantly impact separating spouses’ rights, it’s critical to consult an experienced family law lawyer for assistance when preparing a separation agreement.
For Comprehensive and Compassionate Family Law Advice, Contact Tierney Stauffer LLP in Ottawa
The skilled family law and divorce lawyers at Tierney Stauffer LLP are passionate about helping clients navigate the complicated family law landscape after a separation or divorce. We ensure clients understand their rights, obligations, and options to empower them to make the best decision for themselves and their families. Our firm provides honest, practical legal advice that helps preserve our client’s rights and protect their interests while avoiding unnecessary and costly conflicts.
Please contact us online to schedule a confidential consultation about your family law or divorce matter or call 1-888-799-8057.