Separation and Family Dispute Resolution – What are your Options?
Oct 29, 2021
There are very few “easy” steps in a separation or divorce. It’s an emotional time – you may be sad, or angry, seeking reparation for the pain you are experiencing or hoping to protect your valued assets. You’ll likely feel a swirl of all these emotional states and more.
You’re not alone…most do.
Regardless of their emotions, many couples have a strong desire to separate amicably, and to avoid the pain of a long, drawn-out process.
The good news is that there are many options for family dispute resolution. If you are thinking of separating, or already separated, consulting a lawyer is a good first step. A qualified lawyer can provide information about the specific laws that affect your case, and advise on the different approaches you can take to resolve your concerns.
What is Your Situation? Married or Common-law / Cohabiting.
While a long-term marriage or common-law relationship might look the same day-to-day, they are very different legal arrangements when it comes to separation. When the relationship ends, the legal distinctions become very important.
Couples who choose to marry automatically share in the value of their property under the law. Although there are some exceptions to this, in general, when a marriage ends, the value of the property you acquired together after marriage, and any increase to the value of the property you brought into the marriage is divided equally between both spouses. Both parties have equal rights to stay in the family home, and may be entitled to financial support for themselves or for the children.
Common-law or Cohabiting
There are different rules for couples who are in a common-law arrangement. In Ontario, for purposes of spousal support, you are considered in a common-law partnership if you have been living with your partner continuously for at least three years, or for one year if you have a child together.
Typically, when common-law couples separate, each partner is entitled to the property they brought into the relationship. Any increase in value of the property does not need to be shared. Spouses in a common law relationship can ask for support for themselves or their children when separating. Unlike married couples, you do not automatically have equal rights to remain in the family home nor do they automatically share in the value of the property of the other. In some cases, a common law spouse may be able to see a claim to the other’s property based upon equity, joint family venture, or unjust enrichment .
Do you have a Marriage Contract or Cohabitation Agreement?
Another important consideration is if you have previously entered into a marriage contract or cohabitation agreement with your spouse. These documents can outline ownership of specific property, support, and how property will be divided if a relationship ends. They can make separating somewhat simpler as an agreement is already in place covering many of the items you otherwise may have to negotiate.
It is important to note that neither a marriage contract nor a cohabitation agreement can make promises about parenting arrangements for children.
Options for Separation and Dispute Resolution
Once you have decided to separate, and it is not likely that you will live together again, you will have to make a number of decisions. These include who will remain in the home, how you will care for children, support payments, how to handle family debt, and how property will be divided.
These issues can be resolved in a number of ways, varying from informal to a more formal court-setting.
Informal agreement (verbal or written)
This is one of the simplest approaches to a separation. In this case, both partners agree on how to approach their separation. While this works for some couples, the agreements are not legally binding. Couples may take this route during a “trial separation,” while they work to repair their relationship, before deciding to permanently end their union.
Separation Agreement without a Lawyer
In this approach, both parties agree on terms for the separation and write them down formally in a separation agreement. To be legally binding, the agreement must be signed by both partners in front of a witness (who must also sign the document).
While a separation agreement can be completed without a lawyer, it is a good idea to have a lawyer review your agreement prior to signing to ensure you have covered common areas of family dispute and to make sure the agreement cannot be set aside later if one party did not understand the nature and consequences of the agreement.
Separation Agreement Negotiated with a Lawyer
A Separation Agreement is one of the most common practices. Whether discussing parenting or financial issues, most couples are able to negotiate family disputes with the assistance of lawyers. Once there is agreement, details are incorporated into a Separation Agreement that is legally enforceable.
Mediation or Arbitration
If you feel confident you both can agree on what you want for yourself and your children, mediation or arbitration may be the route to take. Mediators can be lawyers, social workers, psychologists or other professionals who are qualified as family mediators.
Mediators do not take sides or make decisions. Their role is to guide the couple to help reach an agreement. It is advisable to speak to your lawyer before seeing a mediator to ensure you understand the law, and your rights and obligations.
Court proceedings for a separation can be lengthy and expensive, however court can be the best option for many, especially in the case where a spouse is violent or threatening and court assistance is required for safety. As court cases can take time and decisions about children and support are more urgent, the court has the power to grant a temporary order in these matters, which will stay in effect until your case is heard in full.
Separation is a significant step in your relationship. The decisions you make when separating can affect you and your children for the rest of your lives, and a Separation Agreement is a contract that must be honoured. While you can go to court to change it in the future, the process can be difficult, so it’s best to have the details clear from the start.
Consulting a lawyer when separating can provide the guidance you need, and confidence that you understand the legal consequences of your decisions.
The Kelly D. Jordan Family Law Firm team can assist you in all aspects of the preparation of these agreements from negotiation to drafting. We can provide you with legal advice on any contract that you have entered into with your spouse.