Deciding to end a marriage or a common-law relationship can be a difficult decision for many reasons. In addition to the emotional impact, there are often financial and legal implications of separating that will need to be addressed. Continue reading for our 12 marital separation tips.
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The following is a list of things to consider when making this critical decision:
Safety First: Domestic Violence or Safety concerns – Separation can exacerbate relationships already characterized by domestic violence. Suppose you are worried about telling your partner that you want to separate. In that case, you may want to consider contacting the police or a local shelter to let them know you intend to leave an abusive situation and ask for support in safety planning. It’s important to note that the police’s information may result in criminal charges being laid against the abuser. A safety plan is vital to develop before speaking to your partner about separation. It may be wise to have another person with you to reduce the risk of violence during that conversation.
Get Informed About your Family’s Finances – if you haven’t been involved in the family finances, it is recommended that you take an interest and learn as much as possible about the income and expenses of the family along with “where the money is.” If you are married, then property division (or “equalization”) will require you to exchange documents with your spouse on 1) income and 2) assets and debts on the date of marriage and the date of separation. For example, income tax returns and notices of assessment, bank account statements, credit card statements, are common (but not the only!) examples of documents that should be collected.
Your Future Goals – if you want to be more involved in your children’s lives, it is best to step up and do so before triggering a separation to demonstrate that you are willing, committed and capable as a parent. Parents who have not been involved in their children’s lives but seek a schedule where the children live with them for a significant amount of time will have difficulty unless there is history to support this position. If you have a stay-at-home or unemployed spouse, you would want to encourage them to work before triggering a separation as that can reduce future support obligations you may have towards him or her. Suppose you are thinking of a career switch to make yourself more available for the children that will result in lower-income. In that case, it might be best to make this career change before triggering a separation to avoid an accusation that the move was made to reduce possible child support and/or spousal support obligations.
Safekeeping Important Items – In some situations, separation brings out the worst in people. Putting your essential legal documents (i.e., passport, SIN card, birth certificate, OHIP card, etc.) in a safe place along with any jewelry or sentimental items in case things go sideways is a good idea.
Ensuring you have access to your funds – if you do not already have one, you should open your own bank account and get your own credit card. If you have access to a joint line of credit or a joint bank account, you may want to take some money from there to put into your own bank account so that you have access to funds if you are concerned that your spouse will be financially abusive. Please note that you will have to account for any money taken from a joint line of credit and/or mutual bank account when you and your partner resolve financial issues.
Meet with a family law lawyer – “you don’t know what you don’t know,” and it is important that you discuss what your legal obligations and rights are with a lawyer to inform yourself – if it were all “common sense” then there would be no lawyers. It is not recommended that you agree to terms or sign a separation agreement with your spouse before you obtain legal advice. Meeting with a lawyer does not automatically mean that there is no trust between the parties or that things must be adversarial and expensive. An experienced family law lawyer will discuss various options for resolving legal issues arising from your separation out of court (i.e., Alternative Dispute Resolution) because those processes tend to resolve matters in a more timely, cost-effective way and creative way that can help preserve familial relationships into the future.
Avoid Playing Games Financially – Since the law assumes you share what was accumulated during the marriage with your spouse, you should not try to move large amounts of money from your name into the name of family or friends or give significant cash gifts to third parties to “hide” money before separating. Similarly, it is not recommended that you make significant purchases, which can lead to accusations of dissipating assets before you separate. If you engage in this kind of behaviour, your spouse can seek an “unequal division” of property to reflect this, and you will lose “credibility” in front of a judge. A spouse can also go to court to obtain a “preservation order” that stops the other spouse from accessing other assets because they are intentionally depleting them.
Risks of Purchasing a New Home before Settling Financial Matters – it’s essential to consider the risks and consequences of rushing into major financial decisions such as purchasing a new home. While the desire to purchase a new home and get settled is understandable, before you and your partner have finalized your settlement, it can be problematic. If you and your partner have settled financial matters such as property division, trust claims and support, they should be set out in a separation agreement or a court order. By having the financial terms of settlement in a separation agreement or a court order, you have certainty about the terms and can engage in proper financial planning. For example, if you purchase a new residence with the expectation that you will be getting a certain amount of money, but there is no formal separation agreement or court order then:
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- you are at risk of defaulting on your new property and can be sued if your former spouse ‘changes their mind’ about how much you will receive;
- you may find yourself pressured to sign a separation agreement on “unfavourable terms” because you need money to close the new property you purchased; or
- you find out that after buying the new property, your partner wants more money from you and are at risk of being forced to sell your new home because it is unaffordable.
Protecting Your Privacy – it might make sense if you are separating to obtain your own cell phone (on your own account) and creating a new email account/update your passwords if you’re concerned that your spouse has or will invade your privacy because of the separation.
The Impact Separation Will Have on Your Children – in an ideal world, parents will discuss and tell their children that they are separating and love them. It is a bad idea to tell your children about the details of the separation and your problems with your spouse. Ideally, you and your ex should try to encourage the children to have positive relationships with both parents. Separating parents should avoid engaging in “adult discussions” when their children are present (whether its financial, parenting issues, etc.). Children should not be used as messengers to communicate issues between parents either – to the extent possible. They should be insulated from all matters arising out of the separation. Study after study demonstrates that children from separated and divorced homes suffer disadvantages later in life (economically, academically, in future relationships, etc.) and that this stems from ‘conflict’ between parents both during after a separation. Be civil and courteous to your separated partner, even when you two disagree, as you are ‘modelling behaviour’ for your children in each interaction.
Avoid Leaving Home Unless Your Safety or That of Your Children are at Issue – If you are married and you and/or your spouse own the property that you live in on the date of separation, then it is a “matrimonial home” that has special protections under Part II of the Family Law Act, R.S.O. 1990, c. F.3. For example, even if your spouse solely owns the matrimonial home at the time of separation, as a married spouse you are legally entitled to stay there until a divorce is granted or the court makes an order for your spouse to have “exclusive possession” of the matrimonial home. If your spouse threatens or harms you or the children, you should immediately call the police to ensure safety. In this situation, your spouse may be criminally charged and have probation conditions prohibiting them from staying in the marital home and/or having contact with you/the children.
Being Self-Aware on Social Media – If you are going through a separation, it would be wise to review who has access to your social media profile and edit accordingly. You should avoid posting negative messages on social media about your partner, your separation or any information that you would not want to see inside a courtroom. The best advice is to reduce your social media presence during this difficult time as Facebook, Instagram, Twitter, etc. are all different avenues for people to collect information about your whereabouts, parenting, lifestyle, etc. that may complicate things for you during a separation.
The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information and marital separation tips, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.