How to File a Marital Separation Agreement
Although family law, including those statutes pertaining to divorce and separation, differ from one province to another, many of the major provisions and concepts associated with these laws largely are the same across Canada. Although filing a marital separation agreement may require some slightly different procedures in each province, the overall process largely is the same from coast to coast.
Overview of Legal Separation
This type of separation is a legal remedy that deals with all issues that otherwise would be involved in divorce proceedings. A separation agreement and associated court order resolves everything from a division of assets and debts as well as child custody, support and parenting time (visitation) issues). The only element that exists in a divorce settlement agreement (or court order) that is not present in a separation agreement is that there is no termination of the marriage itself. Pursuant to a legal separation agreement (and the underlying law governing such a contract), the spouses remain legally married.
Determining if Legal Separation is the Proper Course
Legal separation is an appropriate course of action for couples to take in some limited situations. The next step in the process of filing a martial separation agreement is determining whether or not it is the most appropriate remedy for a couple.
Examples of when a couple reasonably pursues legal separation as opposed to divorce include religious beliefs that prohibit divorce. Other historic reasons include situations in which one spouse is covered by the other’s health insurance and is undergoing some sort of treatment for a disease or illness. Maintaining that individual on the existing insurance policy makes the most sense and can only be accomplished through a separation as opposed to a divorce agreement or decree that terminated the marriage — and, hence, the health insurance coverage for the spouse.
File a Petition for Legal Separation
The next step in the process is filing a petition for legal separation. The petition is filed with the clerk of the court in the county where at least one if not both of the spouses reside.
Negotiate and Draft an Agreement
The couple must negotiate the terms and conditions of a settlement agreement and then commit the agreement to writing. Keep in mind that courts across the country many times maintain standard form settlement agreements that can be filled out by a couple.
The settlement agreement must address all relevant issues, which can include division of assets and debt, issues relating to children, who will maintain the marital residence and so forth.
Request a Court Hearing
In advance of actually physically filing a separation agreement, most jurisdictions require the couple to appear before a judge. The hearing usually is short and to the point. Essentially, the judge questions the parties to ensure that they understand the course of action they are taking, that the jurisdictional requirements of the case are met (for example, that the couple has lived in the state and the county for the required period of time) and that they both truly do agree to enter into the agreement of their free will.
Filing with the Clerk of the Court
Once all of these steps are completed, the original settlement agreement is filed with the clerk of the court. A couple seeking a separation needs to take extra copies of the settlement agreement along for their own records. When filing the original, they need to request that the court clerk’s staff “certify” the copies. Certification is an authentication from the court clerk that the copies are true and correct and conform to the original agreement.
As you can see, the process of filing a a marital separation agreement can be long and tedious. As such, it would be wise to hire a divorce lawyer who is familiar with the process. Fine and Associates is a Toronto based law firm that specializes in family and divorce lawyer. When you hire us, you can rest assured that we will handle your case with the urgency and attention it deserves.