Misconceptions about separation agreements are common in Alberta.
A separation agreement is not proof that you have been separated from your spouse for a year. It is a legal document that details the conditions by which you and your spouse agree to separate.
While no such document isrequired in order to separate and live apart, a divorce will not be granted by the courts in Alberta until these terms have been decided.
Most couples prefer to maintain control over decision-making. They want to decide for themselves how they will separate rather than having a ruling imposed upon them by the court: so, a process of negotiation, mediation or collaborative law may be used to reach an agreement.
In some cases, where no agreement is possible, either arbitration or litigation may result. The two spouses must then agree to abide by the decision of either an arbitrator or a judge.
You can separate informally and start living apart with no separation agreement in place. The separation may be on a trial basis or permanently, with a view to getting divorced.
After 12 months of living apart, the court will grant you a divorce as you have demonstrated that the marriage has broken down.
All that is required to demonstrate this is to confirm the date of separation on the Divorce Affidavit that must be submitted when you file for a divorce in Alberta.
However, in order for the divorce order to be signed by a judge, he or she must be satisfied that all the following have been resolved:
A formal separation agreement can detail this along with the rights and obligations of each spouse.
It does not end your marriage or initiate a divorce. It is not even formally required but it can help facilitate your divorce.
Creating a separation agreement is usually beneficial as it avoids misunderstandings and may allow you to separate on more amicable terms than where litigation is necessary.
It is also enforceable in court if one of the spouses fails to fulfill their obligations.
Courtroom battles are generally not beneficial for the participants or for the children from the marriage.
To avoid this, a separation agreement can be negotiated and prepared by your lawyer and shared with opposing counsel.
Upon agreement of all terms, a final agreement is signed and endorsed by each lawyer before being submitted to the court with the Statement of Claim for Divorce form.
The agreement is not legal in Alberta until signed by two lawyers and unless it includes an Independent Legal Advice Certificate.
You and your spouse should hire independent divorce lawyers even if you have agreed on the terms of your separation agreement.
Obtaining a separation agreement in Alberta is a collaborative process.
The most amicable and affordable way is to work with your spouse on agreeing the key terms of the divorce regarding property and debt division, child custody and the parenting plan, and spousal support.
If you can decide most or all of this yourself, it will save time and money.
However, you should still hire a lawyer to draft the separation agreement so that it is enforceable in court.
An experienced divorce lawyer will be able to guide you, for instance, on whether your parenting plan will be acceptable to the Alberta courts and on whether the marital property division proposals are fair to you.
This helps ensure that the divorce process is cooperative, non-adversarial, and can pass through the courts without delays.
A good separation agreement should:
Remember, a separation agreement is not legally required in order to get a divorce. However, there are several good reasons for having your lawyer draw up an agreement:
If you have any questions about separation agreements or would like to discuss your personal situation with an experienced divorce lawyer, Jennings Family Law offers initial consultations.
After a short discussion, we can provide an assessment of your position and recommendations for the way forward with the separation process.