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When Should I Consider Getting A Separation Agreement?

When Should I Consider Getting a Separation Agreement?

By , of Carmichael Law Professional Corporation posted in separation on Thursday, July 8, 2021.

If you and your spouse have decided to separate, whether you are just taking time apart to work through difficulties in your relationship or you have decided to permanently end your marital relationship or seek a divorce, you may have many outstanding issues that need to be resolved now that you are going to live apart from one another. In this case, you may wish to consider entering a separation agreement with your spouse to address these issues.

What Is a Separation Agreement?

A separation agreement refers to the legally binding document that is drafted by married spouses when the couple chooses to separate and live apart from one another. A separation agreement can address each spouse’s obligations with respect to the couple’s joint responsibilities, such as paying the mortgage and housing expenses or taking care of the couple’s children, during the time that the couple is separated.

If a couple is headed for divorce, a separation agreement can also be used to resolve outstanding matters prior to the divorce proceeding, including division of assets and liabilities, alimony, and custody and visitation.

As a legal contract, a separation agreement can be enforced in court. Where a couple settles the outstanding issues from their marriage in a settlement agreement, the agreement can also be made part of a final judgment if the couple files for divorce. Ultimately, a separation agreement represents a more efficient and cost-effective way for a couple to resolve disputes and questions created by their separation.

When Might a Separation Agreement Make Sense?

A couple may choose to enter a separation agreement for one of several reasons:

  • A married couple wishes to separate from one another but remain married due to the possibility of the couple reconciling their relationship. Separation agreements are commonly used for married couples who hit a difficult patch in their relationship and want to take some time living apart while they try to work out their issues and potentially reconcile.
  • A married couple wishes to separate but wants to continue their legal marriage. A couple may decide to keep their legal relationship in place for personal, legal, or tax reasons but no longer wish to live together.
  • A married couple is pursuing a divorce. Depending on the circumstances of the divorce, a couple may be required to live separate and apart for one year prior to filing for divorce. When a couple makes the decision to get divorced, the separation agreement allows them to resolve the issues that normally come up in divorce, such as dividing marital properties and debts, custody and parenting time, and spousal support. In these cases, the separation agreement is usually made part of the final divorce judgment. 

What Is the Difference Between Separation and Divorce?

Although some people may use the terms separation and divorce interchangeably, the two concepts have different legal meanings. When a married couple separates, they remain legally married to one another. By separating, the couple simply decides that they no longer wish to continue engaging in a marital relationship.

While a separation in many cases represents the first step towards divorce for a married couple, many couples do separate with the realistic prospect of reconciliation of the marital relationship. Or some couples may choose to separate but continue to remain legally married for various legal or tax purposes.

Conversely, divorce refers to the process in which the marital relationship of a couple is legally ended. Once a court grants a divorce, the marital relationship permanently ends. If a couple reconciles following a divorce and wishes to resume their marital relationship, they will need to get married again.

How a Lawyer Could Help

If you think a separation agreement could serve you and your spouse, a lawyer can help by:

  • Explaining the benefits and uses of a separation agreement
  • Taking the time to sit down with you to discuss your concerns, needs, and goals
  • Negotiating on your behalf with your spouse or your spouse’s lawyer to try to reach a separation agreement that protects your rights and interests
  • Reviewing an agreement proposed by your spouse
  • Enforcing an executed agreement in court, if necessary
  • Having the court incorporate your and your spouse’s separation agreement into the divorce order when it addresses the outstanding issues from your relationship

When you are considering negotiating a separation agreement with your spouse prior to filing for divorce, or merely to resolve issues when you and your spouse separate with the possibility of reconciling, contact our Oshawa family lawyers at Carmichael Law for a confidential consultation to discuss your legal rights and options. Call us today at (905) 571-5123 or get in touch with us online.

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