When you get separated in Alberta you’re taking the opening steps towards divorce. In Alberta, most couples must be legally separated for at least one year before either member of the couple can file for divorce. There are exceptions in cases of adultery and cruelty, but they can be difficult enough to prove that many spouses just opt to wait for the full one-year period.
That means that in most cases, provisions will need to be made for how certain household businesses will be handled, even before the divorce is finalized.
For example, some sort of co-parenting agreement will probably need to be created prior to divorce papers being signed. Couples will need to decide who pays for what, as separation doesn’t mean one spouse simply leaves the house while leaving the other to fend for themselves. Provisions may need to be made for temporary maintenance payments.
While Alberta doesn’t require a formal separation agreement to prove that a separation has taken place, forming one is a very good idea. By forming a legal separation agreement, you gain an agreement that is enforceable in the courts. You also gain an agreement that eliminates ambiguity, arguments, and hassles.
What is Considered a Legal Separation in Alberta?
In Alberta, you are considered legally separated when you have the intention to live separately and apart from each other. This can be done in the same home as long as you don’t sleep in the same room or eat together: essentially living as roommates rather than living as romantic partners. You will also want to separate your bank accounts as quickly as you possibly can as separating your bank accounts can provide even greater proof of separation than separating your living quarters.
Both parties have the right to live in the home, even during a separation, though there are circumstances wherein one spouse can force the other spouse out of the home. If there is an emergency abuse case, for example, a spouse may apply for an Exclusive Home Possession Order. Courts consider the financial positions of both partners and the availability of other accommodations when deciding whether to grant such an order.
Both traditionally married partners and common-law partners bound by an adult interdependent partnership can use a separation agreement.
Do I Need a Lawyer For a Separation Agreement in Alberta?
A separation agreement is court-enforceable, so it’s incredibly important to involve a lawyer when you sit down to draft one. Small changes in the language can have big consequences, and most people don’t have the legal training to spot or avoid those mistakes. A good contract will be unambiguous. It will comply with the law. And it will be wholly enforceable. It’s difficult for lay people to produce such agreements.
In addition, a legal separation agreement can have far-reaching consequences for your eventual divorce agreement. In many cases, the terms of these agreements lay the foundation for the eventual divorce order. You’ll want to make sure anything you put into the agreement is something you’d be willing to live with long-term. While there’s no law that says these terms must enter the eventual divorce settlement, they often do.
The courts often reason that if you were willing to live with certain terms during your separation then there’s no real reason you shouldn’t be willing to live with them during your divorce.
Thus, you should treat the separation agreement appointment much like you’d treat a divorce. Arrive prepared with all of your bank statements, check stubs, debts, deeds, and account statements for retirement and investment accounts. Be ready to review your entire situation so your lawyers can help you put together an agreement that covers all the bases.
How Much Does It Cost To Get a Separation Agreement in Alberta?
Drawing up a separation agreement can cost about $2500 in legal fees and court fees. Keep in mind that both you and your spouse will need their own separate lawyers to complete this process. The lawyers will need to provide an Independent Legal Advice certificate to show that both of you were fairly represented during the separation agreement process.
Don’t let the price scare you off. These agreements can save you money in the long run. With a formal agreement in place and a year for tempers to cool, it’s often a short step from the agreement to a workable divorce settlement. Couples who formalize separation agreements tend to spend a lot less time fighting over the terms of the divorce.
In addition, if you need to provide proof of your separation to financial bodies such as your bank or the Canada Revenue Agency, the separation agreement can provide this proof and allow you to take steps like refinancing your mortgage or filing your taxes separately.
What Happens Without a Separation Agreement?
If you don’t have a legally enforceable separation agreement then you are setting yourself up for fights and problems. For example, perhaps your spouse agrees that they will continue to pay the electric bill throughout your separation. It’s an informal, oral agreement.
They pay for a few months, then decide for whatever reason that they just can’t pay. No amount of reminders, arguments, or cajoling on your part gets the bill paid. Now you either have to cover that bill yourself or do without electricity for you and your children.
If you have a separation agreement, you can go to the courts and say: “We have a separation agreement on file with the court that says my spouse will pay this bill, and my spouse has failed to do so.” The court can then reach for any number of remedies to get that bill paid.
What’s more, your spouse will know this, and the likelihood that they’ll stop paying that bill decreases dramatically.
Separation agreements are especially important in cases where one spouse has been the “house spouse” for some number of years and thus is no longer in the workplace. That agreement is often the only thing that can force a disengaged spouse to keep paying the bills and supporting the kids during the required separation year.
The existence of a formal separation agreement will also expedite the divorce process since it can serve as proof of the date that you and your spouse became separated. If you and your spouse intend to separate but attempt reconciliation, they can provide a framework for managing the affairs of the household while the separation agreement takes place. In addition, it will govern the way that your household will be managed after the Statement of Claim for Divorce has been filed, allowing matters to proceed relatively smoothly during the discovery and negotiation process.
What Should I Ask For in A Separation Agreement?
At a minimum the separation agreement should address:
- Who gets to live in the marital home?
- Who gets the cars or the use of the cars?
- Will any maintenance be paid? How often and how much?
- How often will the children be seeing each parent?
- If the parents live in different homes now, which home will be the children’s primary home?
- What happens if either spouse’s circumstances change?
Keep in mind that there is no such thing as a separation agreement where minor children exist that does not include some sort of child support payment.
Why Trust Us To Create Your Separation Agreement?
We have decades of experience handling tough divorce cases. Our team specializes in complex high net worth cases, business owner cases, entrepreneur cases, and farm divorces. We’re tough negotiators and fearless litigators who never stop looking out for your best interests.