Understanding the Difference Between Legal Separation and Divorce
Calgary lawyers at First West Law LLP understand that each relationship is unique, and everyone’s situation is different. By that same token, we take the approach that the end of each relationship is also unique. Needs, wants, and goals on breakdown of a relationship will vary from person to person and over time. When a relationship breaks down, it is important to take stock of your needs, assess your options, and develop a plan. One significant consideration is deciding whether a legal separation or divorce is best for your situation.
Separation or divorce: Which is best for your situation?
The terms “separation” and “divorce” are often used interchangeably, but they are in fact different legal terms that come with different rights and obligations. In this article, our team of Calgary divorce lawyers will explain some of the basics that pertain to separation and divorce, and then we will provide an overview of some of the key differences between the two. Of course, if you need more information, please don't hesitate to reach out to us.
What is a “legal separation”?
Our Calgary divorce lawyers are at times asked to “file for separation” on a client’s behalf. The reality is that there is no way to file for “legal separation” as there is no court filing or document to sign to become officially separated from your spouse. If you and your spouse no longer live together, you are considered separated. Separated spouses can come to an agreement on some or all matters such as child custody, spousal support, and division of property and write down the terms of their agreement in a contract. Once signed, that document becomes a legally binding Separation Agreement that is enforceable by the courts. You can stay separated for an indefinite period; some spouses chose to separate and never legally end their marriage by obtaining a divorce.
What is a divorce?
A divorce is obtained by applying to the court. Once issued, a divorce order has the effect of legally dissolving a marriage. You can file for a divorce as soon as you separate from your spouse, but a divorce will not be granted by the court until you have lived separate and apart from your spouse for at least one year (unless you can establish that your spouse committed adultery or was physically or mentally cruel to you during the marriage). A person cannot get married to a new spouse until 31 days after the court issues a judgment for divorce.
What are the key differences between separation and divorce?
Here are some of the key differences between separation and divorce, along with some of the more significant legal implications that flow from the differences:
• Spouses who are separated are still legally married, even if they have settled all issues by way of a Separation Agreement.
• A divorce is final while a separation can be temporary. Some spouses separate and later reconcile (note that reconciliation for longer than 90 days means that the one-year separation period starts over if you separate again at a later time).
• If you are separated as opposed to divorced, you may continue to qualify for certain tax incentives or other benefits, for example, your spouse’s medical insurance.
• A separated spouse needs their spouse’s consent to sell, mortgage or encumber the matrimonial home.
• In Alberta, property and debt acquired after the date of separation continues to be considered by the courts as "matrimonial property" right up to the time of trial (if trial is necessary). Values can change over time, and this may have significant implications when it comes to dividing assets and liabilities.
• You can be separated and settle all matters such as child custody and access, property and support by Separation Agreement without having to go to court.
• You will need to apply to the court if you want to obtain a divorce, but if you and your spouse agree on all issues, it can be done by way of an “uncontested divorce” such that you do not have to go in front of a judge or have a trial.
• If you are not able to agree on all issues, you have to ask the court to decide the issues for you. A “contested divorce” typically takes longer to obtain and the courts will not grant a divorce order until it is satisfied that reasonable arrangements have been made for children of the marriage.
Need guidance? Speak with our trusted separation and divorce lawyers
Calgary Lawyers at First West Law LLP can guide you in making as smooth a transition after the breakdown of your marriage in a cost-effected fashion. We can act as a mediator for both parties, or act for you in a negotiated settlement, mediation/arbitration and litigation. To request a consultation, we invite you to contact First West Law LLP today at 403-543-7750.