When you first consider divorce or separation and meet with a divorce lawyer, it can be a little intimidating.
You likely have many questions to ask the lawyer so that you can set the right expectations and make the coming months less stressful as you try to navigate the legal system in Alberta.
It helps to write down the questions you want to ask in preparation for meeting your lawyer. Start by asking the following questions—which we also answer for you according to the principles of Alberta family law and our experience in working with many local families.
What is the Difference Between Separation and Divorce?
Any couple can separate in Alberta—whether married, in an Adult Interdependent Relationship or simply in a romantic relationship but not living together—but only married couples can get divorced.
Separation can refer to when unmarried couples decide to go their separate ways and physically move apart—sometimes resulting in a separation agreement that formalizes the arrangement.
However, separation can also refer to when married couples decide to live apart, often in preparation for a divorce. Sometimes, spouses live under the same roof during this period but are legally considered to be living separate lives. For this to be the case, the couple must lead separate lives domestically, financially, and socially.
Married couples may also create a “separation agreement” to resolve the main matters in their separation, including child parental responsibilities, support issues, and property division.
Divorce, on the other hand, legally terminates or dissolves a marriage. Court involvement is required before a couple can legally be considered divorced.
Do I Need a Separation Agreement in Alberta?
A separation agreement is a contract between spouses that details the conditions of separation.
Married couples may use such agreements as the basis of a divorce, making it a highly significant document for most divorcing couples.
To formulate a legally enforceable separation agreement in Alberta, spouses must agree on all the main issues involved and be prepared to sign a document to this effect after receiving independent legal advice (the same lawyer cannot represent both parties).
You do not legally need a separation agreement to get divorced in Alberta. However, a separation agreement can benefit divorcing couples in the following ways:
- Avoiding disputes and misunderstandings and preserving the relationship (especially important if there are children to care for after the marriage ends).
- Helping to settle the key issues in a divorce and providing more certainty for spouses about the future.
- Saving time, stress, and money by avoiding the need for litigation.
- Maintaining control for the spouses in the decision-making processes.
If spouses do not present a separation agreement to the court, a judge will need to decide the key separation terms before a divorce can be granted in Alberta.
How Long Do You Have to Live Apart to Count as “Separated” in Alberta?
According to the Divorce Act, spouses must have lived apart for at least 12 months before a divorce can be granted—unless the grounds for divorce are adultery or cruelty, in which case no separation period is required.
It should be noted that the 12-month separation requirement does not prevent couples from filing for divorce within that timeframe. It refers only to when a judge can issue a final divorce decree.
Can I Change the Terms of the Separation Agreement?
Because separation agreements are private agreements, the terms can be changed by mutual agreement between the parties or through mediation, arbitration, or litigation. However, the Alberta courts are generally reluctant to amend separation agreements without a very good reason, such as a legal flaw in the original agreement or a substantial change in circumstances.
Can I Turn the Separation Agreement into a Court Order in Alberta?
Many family law situations, such as separations and divorces, involve consent orders, which are legal documents that turn mutual agreements between the parties into court orders. These orders make decisions legally binding and enforceable, yet the decisions stem from the parties involved and are simply “rubber-stamped” by a judge.
To obtain a consent order, parties must submit the separation agreement to the court for review and approval. Your divorce lawyer can assist with this process and ensure that the separation agreement complies with Alberta family law.
How are Custody of the Children and Access Determined in Alberta?
Each parental responsibilities and access case in Alberta is handled according to the circumstances. The majority of decisions are in favor of a joint custody arrangement, which is generally considered beneficial for a child’s physical, mental, and psychological health and well-being.
All decisions are made according to the “best interests of the child” principle, which is intentionally broad. This allows the court to consider many factors relating to the child’s physical, emotional, and psychological well-being, general welfare, and overall development. The main factors usually include:
- The child’s relationship with each parent.
- The ability of each parent to provide a stable, loving, and supportive home environment that meets the child’s needs.
- The mental, physical, and emotional health of all parties involved.
- The child’s age and developmental stage.
- The child’s preferences (if mature enough to adequately express them).
- Each parent’s willingness to maintain and promote a relationship between the child and the other parent.
How Much Child Support Will I Pay during Separation in Alberta?
The amount of child support payable by a parent who does not have primary physical custody of the child varies according to the parent’s gross income and the needs of the child.
Several tools are available to help you calculate child support, including the Federal Child Support Guidelines. The following general principles apply:
- If the child lives with only one parent, only the income of the paying parent is considered.
- If the child lives with each parent for approximately the same amount of time, child support is calculated for each parent separately and the amounts are set off against each other (only the higher-earning spouse pays child support).
Because of the complexity of calculations, one of the many online child support calculators may help but, ultimately, the best indication of the amount of child support payable during separation in Alberta will come from an experienced child parental responsibilities or support lawyer.
How are Debts Divided After Separation in Alberta?
Debts of the marital estate are treated largely the same as assets during divorces in Alberta, i.e., they are generally divided equitably (fairly). Often, this results in a 50-50 split but not always.
Both financial and non-financial contributions to a marriage are considered during asset and debt division. For instance, if one of the partners contributes less financially but does more to raise the children or as the primary homemaker, this will be considered during the marital estate division.
If one of the parties has disproportionately wasted marital assets such as property, savings, or other shared financial resources during the marriage—and accumulated marital debt due to these wasteful practices—dividing the debt down the middle during a divorce may be deemed unfair by a judge.
How Do I Communicate with My Spouse During Separation?
Communications with your spouse may become strained during a divorce but here are a few pointers for best results—especially if you are hoping to reunite after the separation:
- Practice honest and open communication for the best chance of remaining amicable and avoiding disputes.
- Avoid blaming each other for past problems and focus on moving forward to the future.
- Put the needs and interests of the children before your own.
- Practice listening as well as speaking!
- Set clear goals together for the separation period to avoid misunderstandings.
- Schedule times to discuss a separation agreement if your goal is to separate for 12 months before a divorce.
- Consider counseling to help you through the turmoil of separation or to help patch up your marriage.
If you live in the Calgary area and need assistance with any matters concerning divorce, the experienced lawyers at Jennings Family Law can help you. Call (403) 316-0138 to request a confidential consultation, contact us directly online, or email Warren Jennings directly at warren@jenningsfamilylaw.com.
