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In Edmonton, Alberta, spousal separation for 12 months qualifies as grounds for divorce.  During this period, two people often make a separation agreement that spells out who pays for what, where the children live, and how to divide assets and liabilities.  A separation agreement often serves as the template for how the divorce itself will be settled.  However, separating from your spouse does not always lead to divorce after the passing of a year. Various financial reasons could compel you to continue as separated people instead of moving forward with a divorce.  The advice of a divorce lawyer is often sought out when determining whether you should pursue divorce or remain separated.

Legal Distinctions Between Separation and Divorce

Separating from your spouse does not require going to court under ordinary circumstances.  This differs from divorce, which can only be achieved by court order.  Separation involves coming to terms with your former partner about how to attend to practical matters, like finances, real estate, raising children, and executing a contract known as your separation agreement.  Courts are not necessary for parties to enter a contract.  Your altered relationship will then operate under the terms of this contract, but legally both of you remain married according to Alberta law.

How Do I Become Legally Separated?

Alberta family law does not provide for the specific status of legal separation.  Separated people are legally married people who have made special arrangements for managing their lives individually.

However, you must show that you and your former partner lived apart for 12 months to qualify as separated.  This is especially important in the context of a getting a divorce on the grounds of separation.  Although you can plan the divorce prior to being separated for a whole year, you must complete 12 months of separation to file the divorce paperwork with a court.

Can I Be Separated From My Spouse If I Can’t Afford to Move Out?

Your desire to separate may not immediately translate into actually being able to live in a different location.  The law recognizes this possibility and requires that you provide certain evidence of separation if you could not move out.

The criteria for separation while sharing the same home are:

  • You do not sleep with your spouse.
  • You do not eat with your spouse.
  • You must intend to move out as soon as you are financially able and can find housing.

Financial Advantages of Separation Compared to Divorce

Separation may offer you some financial advantages over the long term, but this is highly dependent on personal circumstances.  You have the option to remain legally married while separated indefinitely if such a situation would benefit you economically.  Consultations with a divorce lawyer in Edmonton would generally be necessary to determine whether this is the right approach for you.

The main financial benefit that separation would offer you is avoidance of court fees.  If you anticipate a protracted dispute with your former partner concerning the division of marital assets, then the court and legal fees would accumulate during a divorce. Ongoing consultations with a lawyer and multiple court filings and hearings add to expenses.  The alternative of separation would allow you to work out some basic financial parameters of daily life and parenting responsibilities while leaving alone contentious questions about asset division.

Beyond avoiding a costly legal battle, separation may preserve financial benefits related to:

  • Retirement benefits
  • Health insurance benefits
  • Military benefits
  • Tax benefits due to continued joint filing
  • Reduction of household expenses if you continue sharing a home

For some people, prolonging a marriage so that it lasts 10 years could result in the maximization of retirement benefits.  Similarly, you may find it financially important to maintain access to a spouse’s health insurance or military benefits.

Of course, any gains that you could realize from separation instead of divorce must be carefully weighed against the benefits of divorce.  Although divorce will reset your life financially, it does represent a legal dissolution of a relationship that is no longer working for you.  After divorce, you would have the legal ability to marry again, which is impossible if you are only separated.  Perhaps more importantly, divorce severs you from responsibility for any new debts that your former partner might acquire.

What Should a Separation Agreement Include?

A separation agreement covers most of the same issues that a divorce must address.  Your agreement provides a framework for you and a former partner to operate under.  Creating the agreement gives you an opportunity to discuss how to divide your assets, debts, payment of household bills, and parenting time.

Generally, a separation agreement discusses:

  • Where your children will live
  • Who has decision-making responsibilities for children?
  • How to divide your property and other assets
  • Who pays what debts
  • Child support payments
  • Support payments to a former partner, if applicable

Just as with a divorce, you may want to talk to a lawyer while negotiating the terms of your separation agreement.  A lawyer could help you evaluate your rights concerning child support, potential responsibility for spousal support, or long-term financial consequences of separation versus divorce.

Who Needs a Separation Agreement?

Any married couple that intends to separate can benefit from writing a separation agreement.  A written contract spares you from relying on verbal agreements that people may be more likely to produce misunderstandings and disputes.

Talking things through and coming to terms about how to proceed with separation is especially useful for:

  • Couples with children
  • Couples with assets
  • Couples who do not plan to divorce for years
  • Couples who want to start planning the terms of their divorce

Why Do Couples Need to Be Separated for 1 Year Before Divorce?

Separation provides a legal reason for the province of Alberta to dissolve a marriage.  Although adultery and cruelty represent other acceptable reasons for divorce, couples frequently wish to end relationships even in the absence of wrongdoing.  People might just become incompatible without triggering the more severe legal grounds for divorce.

Requiring people to wait 12 months before proceeding with a divorce filing may also be viewed as a cooling-off period.  This creates an opportunity for people to reconcile and potentially resolve their differences and continue their marriage.  Additionally, the 12-month period gives you time to evaluate your financial situation and decide if you should prolong your separation period or move forward with a divorce.

Your Rights During Separation

The collapse of a marriage can happen abruptly and prompt you to leave your home before making a separation agreement.  Moving out under such circumstances does not remove your right to property once you get to the stage of negotiating a separation or divorce.

Additionally, during the initial moving out stage, you have a right to use a vehicle that is titled in your name and withdraw a reasonable amount of money from a joint account.  If you feel unsafe returning to a residence to collect clothing or other personal possessions, you may request police assistance.

In the event that you do not have a place to go but you want your spouse out of the home, you can ask the Court of the Queen’s Bench to grant you an Exclusive Home Possession Order.  The court even has the power to evict a spouse upon issuing such an order. However, this order is temporary until the final terms of separation or divorce are decided.

Experienced and Knowledgeable Legal Support During Separation or Divorce

At Kolinsky Law, we have helped many people resolve disputes and bring their marriages to a fair conclusion.  We are here to answer your questions and defend your rights during a time when major life disruptions confront you.  You can count on our professionalism and compassion at any stage of the divorce process.  Contact us today to schedule an appointment with a divorce lawyer in Edmonton.

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