9 Tips on What to do Before a Separation
By Experienced Divorce and Separation Agreement Lawyer at Shaikh Law Firm
For those couples who are married or have been cohabiting for a while, it is likely that both financial and personal aspects of their day to day lives will have become interwoven. When you find yourself facing the end of your relationship, it is usual that you should want to start the process of separating all aspects of your life from that of your partner.
If you and your partner are required to attend court to litigate claims pertaining to custody, support or access, it is worth remembering that the court will consider any arrangements in place before the separation occurred and are likely to assess any actions and plans against that. This, and other reasons is why you should consider the assistance of a Separation Agreement Lawyer in Ontario.
1. Career Changes and Income
If you are contemplating a career change, this should be done before separation, especially if you will be moving from a job with good pay to one that pays less. Any main income earner making a sudden change to a lower paying job following a separation may be seen by the court to be attempting to avoid their support obligations and may find themselves in a position where they are required to pay spousal, and child support, based on their former income levels.
For people who have an income that fluctuates from one year to the next, if you have your own company and have had an unusually successful year you should advise the court of this. Under the Child Support Guidelines, s.17(1) the court can use an average of the last three years for the purposes of setting child support payments when it believes that income from the current year is not fair.
If you have a poor year, this should be reflected in your lifestyle. Ensure your spouse is aware of any financial difficulties and where possible cut all non-essential expenses. The standard of living that a couple had before separation is looked at by a court when working out spousal support, and they work out future need based on this standard. It is important that your pre-separation lifestyle is not above your current means.
In the case of a couple where one has been a stay at home parent, the encouragement of a return to work is a good idea, so they have some finances on separation.
If you own a business, any discretionary expenses taken from the business will serve to increase your income so avoid doing this.
You may sell your business before separation if you wish, but if you are only thinking about doing so it is wise not to discuss its value with your partner, or any offers you might have received. You want to avid your spouse claiming that the business is worth a specified amount when you are not able to or do not want to sell it for that amount. When you are ready to sell your business is worth what someone wants to pay. You may be required to have your business valued, if you have received offers on it you will be obliged to disclose them.
2. Listing Division of Property
Any time, when couples whether married or in a common – Law relationship decide to separate either jointly or it is a decision by one party, the question comes up how will the Property Jointly owned will be divided. Under Canadian Law, any Property acquired during the course of a marriage or the common law relationship is to be divided equally. Property not only includes immovable property such as a house or a condo but it also includes, bank balance, cars, personal possessions, tools, equipment, household items, as well as bonds and shares. In essences before you separate it is a good exercise to list all your assets, you may have jointly and individually which were acquired during the course of the relationship.
3. Depletion of Assets
Many people attempt to hide or get rid of some assets before separation for fear of larger property equalization payments of hefty support obligations. This is not advised.
Do not do anything drastic that might be considered dishonest by a court. Don’t transfer large amounts of money or give big sums to a friend or family member to avoid sharing with your spouse. Avoid any unusual transactions with money as these can easily be misinterpreted by a court. They can freeze your accounts if your behavior is suspect. Do not freeze or deplete cards or accounts. If you suspect your spouse is doing this speak to your lawyer.
4. The Shared Home
Do not move out, unless you are forced to do so by an unbearable situation where your safety is at risk.
For married spouses, both parties have an equal right to the home, but when you go to court if you live elsewhere, this can go against you and reduce the chance of you gaining exclusive possession of the home following separation.
If one of you has moved out, you may need to apply for an interim custody order and support. These can remain in place until a final court order is made.
5. Parental Agreements
If post separation you are planning to be a more involved parent you should begin this immediately. It is usually fathers who spend less time at home and therefore interact less with their children daily.
In issues of access and custody, courts examine each parents level of involvement pre-separation with the children, considering such things as drop-offs and pickups from school or daycare, free time activities, who carries out bedtime routines and who is mainly responsible for meeting basic needs daily.
Spend more time in the evenings and on weekends with your children now, if this is what you want after a separation, especially if you are considering shared custody but believe your involvement will not be seen as being equal to that of your partner.
6. Powers of Attorney and Wills
If you had a will prior to marriage, it would generally have been revoked by marriage. If you made wills as a couple, you would probably have made each other beneficiaries. Now is the time to create a new will. Consider how you want your affairs to be handled in the future. Do not neglect to do this; you want your children to be looked after if the worst should happen.
If your spouse is named as your Power of Attorney, then you should change this. This will ensure your spouse is not able to make decisions for you on personal care, finances, possessions, and home should you become incapable of making them on your own.
Any documentation showing assets you brought to the marriage should be kept in a secure place, these are deducted from the equalization calculation of net family property and are not shared with your spouse. You must prove these were your assets at the time of marriage, so any documentation to show this is essential.
It is a good idea to have up-to-date records of your property and finances stored away from the shared home.
If your situation is a concern, whether your partner is abusive or violent you can apply for a restraining order. If you are the dependent spouse, you can also apply for interim custody of any children and support for them. If married, you can apply for exclusive possession of the home. Do not be a victim of abuse, take action there are many resources available online as well within your community to help you with prevention of abuse.
9. Speak to a Separation Agreement Lawyer
If you are considering Separating it is crucial that you equip yourself with as much information as possible. Many Lawyers including us offer a free consultation to help clients gauge their situation as well as assist them in protecting their assets, rights, and children. Feel free to contact a lawyer over the phone to get Legal Opinion on your situation.