6 Reason Why Your Legal Separation Is Not Fair
How You can You have a Fair Legal Separation in Ontario?
In order to obtain a divorce in Canada, you and your spouse must have been living “separate and apart” for a minimum period of twelve months unless the reason that you are choosing to file for divorce is because of cruelty in the marriage or adultery. The term “Separate and apart” or Legal Separation has not been defined by the legislature.
There is no such term in Canada as filing for a legal separation. In the eyes of Law you can have a legal separation as soon as both parties started to live apart and separate then you are considered to be legally separated. For Example, husband moves out of the house or into the basement of the House.
The phrase legal separation in Ontario is most commonly used to refer to the contract that is created between the two parties when they decide to go their separate ways. This is not necessarily the same as a Divorce.
In this Article, we will cover What are your legal rights in a Separation and How you can have a Fair Legal Separation in Ontario?
1. You do not have a Separation Agreement
In order to protect your Legal rights in a Separation you must enter into a Separation Agreement.
The Core Issues to Discuss in a Separation Agreement are
- Child Custody;
- Child Support;
- Spousal Support;
- Division of Property (Assets & Liabilities);
A separation agreement is a contract that is legally binding and created between the two parties involved in a separation. It sets out the rights that each person has on a number of issues including property, debt, child custody and access, and spousal and child support. While the decision on creating a written agreement is down to the individuals involved, it is highly recommended to put things in writing in case clarification on any point is needed in the future.
If you did not have a separation agreement and simply decided to go your separate ways, then you may be missing out or compromising on your legal rights in a Separation on something that you were legally entitled to; such as support for yourself or your child.
You may also be missing out on access to your child or your fair share of a property that you bought together.
A clear separation agreement shows each party what they are entitled to and can assist should you decide to go for a divorce, especially if you have a child.
It is also important to note that Divorce will not be granted until the judge is satisfied that adequate provisions for child support are in place. If you have a Separation Agreement professional Drafted by a Lawyer. then Divorce application will be processed without an issue.
2. You Do Not Have Financial Disclosure For Equal Division of Property
If either you or your spouse/ Partner has any property or liabilities, then it is your legal right in a Separation to know full & frank financial disclosure for the purpose of Fair Equal Division of Property.
Financial disclosure is essential when completing a separation agreement, as this allows for the full and fair division of the property and any other financial issues.
A financial disclosure looks at the income of the two parties, the value of the property and any other capital assets and any things like pensions that should also be considered. If there is no financial disclosure, then a full financial picture may not be created, and this could result in one of the parties being disadvantaged.
It is also crucial for your financial disclosure to look at any debts that have accumulated during the marriage. Then it could be discussed how to split the debts up fairly.
3. You Do Not have Detailed Parenting Arrangements
When it comes to legal separation in Ontario, it is essential to ensure that the children of the marriage do not miss out at what can be a challenging time for them.
Parenting arrangements should form a significant part of the separation agreement so that neither parents nor children lose out in terms of having a relationship with the non-resident parent during the separation.
A separation agreement should look at which person will have custody of the children and how that custody will work. It also takes into consideration the rights of the other parent and clearly lays out their visitation rights unless there is some reason that the other party should not have this right.
If this is the case, it is imperative to have the assistance of a legal professional in drawing up the separation agreement.
4. You Did Not Have Discussions About Child Support & Spousal Support
Child support and Spousal support is a vital part of your Legal Separation.
If there are no children from the marriage, then spousal support may still be something that should be taken into consideration.
The details of any child support that is paid will obviously depend on the type of custody arrangements that are made, the number of children and of course their ages.
It is also vital that both parties discuss when the child support being paid will cease. Child Support obligations will not automatically terminate when the child turns 18.
If one parent is to have custody of the child while the other, only having visitation rights once a week, then the visiting parent would be expected to pay child support.
If on the other hand you have a Shared Custody arrangement for example one week with one parent and second week the other parent then the amount of child support should be adjusted according to the income of both parties.
This can be a difficult discussion for many parents to have, and it is often best to seek legal advice to ensure that the amounts agreed on are fair and in accordance with the set table amount.
5. You Do Not Have a Mutual Release
A mutual release for a separation agreement is a document that is signed by both parties to agree to the terms of the separation agreement.
It is signed on the understanding that both parties are happy with the terms that are in the separation agreement. It states that neither party wishes to contest any of the details.
If there is no mutual release, then there is a possibility that one of the parties could challenge something in the future, such as support amounts or custody.
A mutual release is important for all parties involved as it protects them from the issues that might occur as a result of a dispute in the future.
6. You Did Not Get Independent Legal Advice
It is vital to obtain independent legal advice when making any decisions that could affect your financial and legal future, and a legal separation in Ontario is undoubtedly one of those instances.
If you did not take independent legal advice when you created your separation agreement, then you may not have got everything that you were entitled to and may have been financially disadvantaged.
It is all too easy to forget something important that should have been considered in the agreement and adding it later can prove to be a rather tricky issue.
If you are in any doubt about the details of your legal rights in a separation, it is vital to seek legal advice before signing document.
A separation can be a confusing and stressful time for all concerned but having someone on your side who can help you negotiate a fair separation could bring some clarity to the situation, allowing you to move forward with confidence that the important things are taken care of.
If you do not have a Certificate of Independent Legal Advice then you Separation Agreement can be overturned by the Court.