A properly drawn-up separation agreement will act as a legally enforceable contract between you and your spouse when you divorce.
It will not end your marriage or initiate divorce proceedings but will document how you will handle your mutual affairs, such as property division, parenting, spousal support, and so on.
This may form the basis of a divorce decree and help you avoid the stress of an adversarial approach to separation.
As you may expect with such an important document, there are some complexities with separation agreements. The following information is intended to clear up some of your questions.
No. You do not need a separation agreement in order to separate and divorce in Alberta.
If you can prove that you have lived apart for at least 12 months, this will demonstrate that the marriage has broken down and act as grounds for divorce.
You will need to be able to demonstrate this, confirm the separation date on the Divorce Affidavit and then file for a divorce.
All this can be accomplished without the need for a separation agreement.
While a separation agreement is not legally required, it can aid the divorce process in a number of important ways:
If you and your partner are separating on amicable terms, you can collaborate on your separation agreement with the guidance of a lawyer, if necessary.
You and your spouse can work out the key details concerning children, property, support payments and so on before passing it to one of our divorce lawyers to review and draw up a legally binding document to sign.
The details of your separation agreement will depend on the nature of your relationship but will generally include the following:
The rights and obligations of each spouse should be detailed in clear and unambiguous language in the agreement. Spectrum Family Law divorce lawyers are experienced in helping couples in Calgary manage this process.
If there are elements of your draft agreement that are likely to be questioned in the Alberta family law court (such as your parenting plan) your lawyers can advise how best to amend the agreement.
Note that you and your partner should hire separate divorce lawyers even if you separate amicably and have essentially agreed on the terms of your separation.
Once agreed, the document must be signed and endorsed by two lawyers and submitted to the court with the Statement of Claim for Divorce form. You must also include an Independent Legal Advice Certificate.
This finalized document should help avoid disputes, stress, and unnecessary delays in the divorce process.
Technically, you don’t need lawyers until you finalize your separation agreement and submit it.
An abundance of online services exists to help you draft an agreement. However, this document is far too important to risk making errors.
Remember, the contract will form the basis of your divorce decree so it must be clear, unambiguous, and legally enforceable. Most divorcing couples can only achieve this with the assistance of a seasoned lawyer.
Besides, the courts in Alberta dictate that for the agreement to be legally binding, the following provisions must be met:
Yes, you and your partner should hire separate lawyers to make your agreement legally enforceable.
Your lawyer will at least need to review the agreement and confirm that you are aware of its contents, that it reflects your intentions, and that you intend to follow the terms it contains.
A separation agreement is not legally required but it may not be advisable to try to file for a divorce without provisions in place for the key affairs, especially if you have children. Your lawyer can advise what’s best in your situation.
Why is the date of separation so important?
In order to file for a divorce in Alberta (or anywhere in Canada) you must generally have lived apart from your partner for at least 12 months.
Unless there is cruelty or adultery in the relationship, this is the only grounds for divorce. Being able to prove the date of separation is, therefore, critical.
Yes, the separation date is still important if you are not married.
In a common-law relationship, you may be able to make a claim for support, fair division of property, etc. so the date remains a key factor when proving a separation period of at least 12 months.
Due to the complexity of a separation agreement, it is important to have an objective advocate assist you. Our Calgary divorce lawyers at Spectrum Family Law can provide you with practical solutions so that you can get through the document preparation in a cost-effective manner.
Our Calgary intake staff are standing by to help you. Call 403-452-0043 [toll free 1 (888) 410-1677] or contact us online for general inquiries.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take as well as what to expect moving forward.
Our Calgary office is open 8:30 a.m.—4:30 p.m., Mon—Fri.
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