Divorce and Separation
What is the difference between a divorce and separation?
A divorce is a legal status, which can only be granted by a Court.
A separation is the fact that you are living separately, although still legally married.
Sometimes people consider themselves “legally separated” because they have entered into a separation agreement.
The divorce is perhaps the simplest and least expensive service a lawyer can provide. Obtaining a divorce means that you are no longer married. You may obtain a divorce before entering into a separation agreement or before settling your other issues: child custody or support, spousal support; ownership or possession or property; debts, estate matters and other rights.
It is, however, wise to consult a lawyer before obtaining a divorce as it may affect other issues such as possession of the matrimonial home and the ability to remain a beneficiary to your spouse’s health plan or other employee benefits such as his/her pension.
The divorce itself can be a relatively straightforward process. You may file an Application for Divorce (that sets out the statistical information) and claim a divorce on one of three grounds: adultery or cruelty (of the other spouse) or having lived separately for one year. Most people opt for the latter, as it is usually less expensive, quicker, easier and less acrimonious than the “fault” grounds of adultery or cruelty.
You need not wait one year to start the process, but only to submit the final papers (called an “Affidavit for Divorce”). The process, if uncontested by your spouse, can take two or three months to complete. Contrary to popular belief, your spouse does not have to “give” you a divorce or agree that one should be granted.
The reasons to object to the granting of a divorce are usually that adequate provision for the children has yet to be made or that you will suffer some disadvantage, such as being prevented from receiving spousal benefits. In response to your claim for a divorce, your spouse may claim support or a property division or some other relief. This may delay the granting of a divorce. However, you may ask the court to grant the divorce separately and deal with the other issues later.
A person may not withhold the granting of a religious divorce to obtain a more favourable property result.
The separation is usually achieved simply by physically living separately and communicating to your spouse that the marriage is over and that you intend on living separately from that point. You may be “separated” while living in the same home or even sharing the same bed. Some questions that may need to be answered include:
- Is there a physical separation with withdrawal from the matrimonial obligation,
- an absence of sexual relations;
- lack of communication;
- an absence of joint social activities?
- What is the true intent of a spouse?
- Does he/she file tax returns indicating “separated” or “married”?
All of the issues facing you: child custody, access and support; spousal support; property division; debts; and estate matters can be dealt with in a separation agreement. The only issue that cannot be dealt with is the divorce itself, which must be granted by a court. This is the most economical approach, as court appearances and trials can be expensive. The preparation of a domestic contract (separation agreement, prenuptial agreement or marriage contract) requires that full financial disclosure be made to the other party. If it is not, the court may set aside the agreement.”
If you cannot agree on these items with your spouse directly, you may use the services of a lawyer, who will initiate contact and negotiate with your spouse or his/her lawyer. You may also attend mediation, with or without the assistance of a lawyer. If mediation is successful, the lawyer can draft the separation agreement for you.
As lawyers charge per hour, the less “back and forth” between lawyers, the less it will cost. The more items on which you can agree directly with your spouse, the less it will cost. If your spouse is unreasonable, proceeding to court may be your only option. If you must proceed to court, your spouse may have to pay some or all of your legal fees.
It is wise to consult a lawyer before deciding whether to separate. He/she can advise you as to the proper procedure and whether you may take the children with you.