Every time the topic of obtaining a Separation Agreement comes up in a conversation or discussion with a client, I realize that most people understand it the same wrong way. Because of that, I decided to write this blog to explain what Separation Agreements in Alberta, Canada are and aren’t!
So what is a Separation Agreement and what exactly is covered in it?
A Legal Separation Agreement in Alberta is a written document drafted after a married couple separate from one another. It can be either drafted by the parties themselves or by one of their lawyers. A typical Separation Agreement includes clauses pertaining to the particulars of the parties and their children, spousal support, the division of the matrimonial assets, parties’ personal assets and liabilities, custody, parenting, child support, and financial disclosure. It is, in essence, an all-encompassing document that both parties agree to and can move forward based on.
Things Separation Agreements are not:
A Separation Agreement is not your proof that you have been separated from your spouse the required one year before filing for divorce in Alberta.
When you file for divorce, all that is required to prove that you have been separated for one year or more is that you include the date of separation on your Divorce Affidavit. This Affidavit is your piece of evidence, that, amongst other things, you have been separated from your spouse for one year or more.
A Separation Agreement does not initiate the Alberta Divorce Proceedings:
Most lawyers, when retained, and especially in cases wherein the divorce is uncontested, start the divorce process by drafting a Separation Agreement for the client. Essentially, the drafted Separation Agreement is shared with opposing counsel, and after a series of adjustments, a final Agreement is signed and endorsed by both lawyers. This is a typical procedure, but it is not actually required to file for divorce. The document that initiates a divorce action in Alberta is the Statement of Claim for Divorce, which is a court form, and not a lawyer’s template.
Alberta Divorce Filing Quiz
Further to point # 2, a Separation Agreement is not mandatory to file for Divorce in Alberta:
There may be many reasons why you would choose to have a Separation Agreement prepared and signed. However, don’t just do it so you are able to file for divorce, because you don’t need it for that reason. Having a Separation Agreement that is agreed upon by parties and signed by their respective lawyers is sometimes helpful when added onto a divorce file, but it is not mandated. An example of when a Separation Agreement can be beneficial from a divorce filing perspective is if the clerk is reviewing your file and one of the clauses is not accurate or clear, she will refer to your Separation Agreement to cross-reference the information. Also, from my experience, Justices are more inclined to sign a Divorce Judgment if its clauses match what’s in the Separation Agreement.
A Separation Agreement is not legal in Alberta unless it’s signed by two independent lawyers:
There are Separation Agreement templates in Alberta and fillable kits that you and your spouse can use to complete one. I’ve seen some of those and they have good content. However, a Separation Agreement holds no weight if you don’t each takes an appointment with two independent lawyers to check it over and give you legal advice on its content. Essentially, in order to have a proper Separation Agreement in Alberta, you will require that the two lawyers sign your Agreement, along with an Independent Legal Advice Certificate (ILA), which is normally attached to the end of the agreement. Some financial institutions, and under specific circumstances, will allow a Separation Agreement that is not signed by lawyers, but it is not the rule of thumb
A Separation Agreement is not always the result of a Mediated Settlement:
If you’ve read any of my previous blogs, you would know that I’m a big fan of mediation. When parties are struggling to agree and move forward with their divorce, the best course of action is to meet with a mediator who can help them sort through some of their issues. When the mediation sessions are finalized, the mediator will typically draft a Mediation Report, also called a Memorandum of Understanding or a Mediated Agreement. This document will only include the topics that have been agreed to and not necessarily everything that is typically covered in a Separation Agreement.
Many people like having a Separation Agreement in place, as it represents a tangible proof of what’s been agreed upon with the other party. It is also useful as proof when conducting post-separation transactions with the Canada Revenue Agency, your employer, as well as the bank. However, things go wrong with a Separation Agreements in Alberta for many reasons. Some are when parties do not provide full and complete disclosure or when they get stuck on some of the issues. That’s when a peaceful Agreement can turn into a long paper trail that turns into an overwhelming and long-lasting ordeal.
To bring it all together, Separation Agreements do have some benefits, however, be aware that they neither prove your separation nor are they required to file for divorce. If you want to look at filing for divorce without a Separation Agreement, call us and we will explain your options. Take our 30-second Alberta Divorce Filing Quiz to identify the next steps for your Divorce in Alberta.