How Do I Obtain A Legal Separation From My Ex-Spouse?

How Do I Obtain A Legal Separation From My Ex-Spouse

A question I am often asked when people come to me for an initial consultation is “How do I get a legal separation”?

What I explain to these people is that the separation occurs when the decision is made and acted upon to separate. It only takes one person to make that decision and the other spouse does not have to agree with the decision in order to make the separation legal. Although in some jurisdictions people can be “legally separated” and remain living in the same house provided that they are no longer acting and presenting themselves as a couple, more often the date of separation is the date when one of the spouses moved out of the home where they were residing together with the intention not to reconcile.

What the person usually means when asking me when they ask about obtaining a “legal separation” is how do they resolve the issues resulting from the separation such as the custody and access of the children, child support, spousal support and division of property.

I generally discourage people from going to court without first having tried to negotiate a Separation Agreement with their ex-spouse through alternative dispute resolution. A separation agreement outlines the rights and responsibilities of each of the parties with respect to their children, financial support, property division and estate matters.

For a separation agreement to be legally binding in the jurisdiction where I reside (i.e. in Ontario, Canada) it has to be in writing, be signed by both parties in front of the witness and dated. It is possible to enter into a legally binding separation agreement without having consulted a lawyer. However this is risky as an agreement entered into without the benefit of legal advice could potentially be set aside by a court if either party decides to challenge the agreement at a later date. Also, many people think they know the law when in fact they do not. I hear many “myths” about family law from clients who have been talking to friends and family members about their separation and have been misinformed by them. If you do not know the law you might not include something important in your agreement or include things in your agreement which you find out later on are not legally binding. Another benefit of seeking independent legal advice prior to signing an agreement is that the lawyer who gave you advice about your agreement will be liable and may have to pay you damages if they do not adequately protect your interests.

If you are trying to negotiate terms of a separation agreement with your ex-spouse and reach an impasse, there are several alternative dispute resolutions options available to you to assist you in resolving the issue.

One such alternative is mediation, whereby you seek the assistance of a third party, who is neutral, to assist you in discussing the issue and coming to an agreement. What a good mediator will do is help you differentiate between your “position” and your “interest”. In doing so they can often help you to identify common interests and to seek solutions that are “win-win”. However, if you cannot agree during the mediation, the mediator will not make a decision for you.

To avoid this scenario some people agree to participate in Med-Arb which is short for Mediation/Arbitration. This is where you start off with mediation but if you are unable to agree through mediation the mediator switches hats and becomes an “arbitrator” and will make a decision for you based on your submissions. The role of the arbitrator is very similar to that of a judge. You can also participate in arbitration without first attempting mediation. The advantage of arbitration over court is that you can choose your own judge, can keep your information private and can have more control over the procedure that is used to decide the issue. In most jurisdictions, arbitration awards are just as binding as court orders and can be appealed to a court in some circumstances if a serious error has been made by the arbitrator.

You can also participate in the Collaborative Family Law process. This is where you each hire lawyers who are collaboratively trained to assist you in negotiating an agreement. This is done by holding four way meetings with both lawyers and parties present to discuss the issues. Prior to entering into negotiations the parties and lawyers sign a contract stating that they will not go to court and that if they do they cannot use the same lawyers or any of the professionals who assist them in the process. There are sometimes other collaboratively trained professionals who assist the parties with parenting issues or financial issues.

Some people try to negotiate an agreement through their lawyers. In my experience, this can lead to the parties losing control over the settlement discussions and incurring unnecessary costs, but it does work in some situations.

If you or your ex-spouse are not willing to participate in any of the alternative dispute resolution processes described above and you cannot agree about one of the important issues resulting from your separation, such as who should have custody of the children, your only alternative is to go to court. Family courts vary greatly depending on the jurisdiction where your reside. In Ontario where I practice the court process is time consuming and expensive. It also usually leads to increased conflict between the parties which can be very harmful to any children who are involved in the separation.

Anne-Marie Langan is a sole practitioner who has a family law practice in Sharbot Lake, Ontario. Anne-Marie’s primary objective is to make family law more accessible for people who would not otherwise be able to afford a lawyer by keeping her fees affordable and through free public education. You can find more of Anne-Marie’s articles on her website at www.langanfamilylaw.com .