Before you get divorced you will likely experience a time of separation. Determining your rights during separation is important for you to protect yourself and your children before you get divorced.
For many couples, the separation and divorce process begins when the husband or wife leaves the marital home, although you can be ‘separated’ while living in the same home. Some times neither spouse can afford to live in separate houses and have nowhere else to go, or for others, the decision to separate and divorce may be amicable and mutual with neither feeling an overwhelming need to leave right away. Living together while separated does sometimes create an issue when determining the official date of separation so it is important to pinpoint this date and document it by filing your separation papers.
Couples who are separating will often form a written agreement on terms and conditions – such a Separation or Property Contract is when legal advice is particularly important, as each party must have their own independent legal counsel. The Alberta government also requires separating parents to complete the Parenting After Separation Course which is a free, online course that takes a few hours to complete, before filing a divorce application or any Court Application dealing with parenting issues. Some basic legal principles will be defined during this course, as well as topics such as the impacts of separation and divorce on children and mediation resources. The course is also available in person.
Your separation circumstances will play a role in the separation process, regardless of which partner left the family home first. If your partner is refusing to move out of the home, there is family violence or financial hardship, a person can apply in Alberta Court of King’s Bench for an Exclusive Possession Order that can order a partner evicted and possibly impose a restraining order to keep him or her from entering and even force them to stay a certain distance away.
This order applies to a married couple or those in an ‘adult interdependent relationship,’ also known as a ‘common-law relationship’. The law determines that you have been in a ‘adult interdependent relationship’ if you have been interdependent for a minimum of three years. The time frame can be less depending on the circumstances such as if you have an AIP, or if you have children together.
Such an order can be granted even if the home is exclusively in the name of your spouse, and it will consider the finances of both parties as well as the needs of children.
If physical violence is an immediate concern, a family lawyer can also assist in seeking an Emergency Protection Order (EPO) through an Alberta victim services agency or on an emergency basis at the Court.
It is normal to be concerned about your property and assets during separation. In Alberta, you cannot get divorced until you have been separated from your spouse for one year, which can be a long time to wait to remove them from your assets. Any attempt by one separating spouse to remove all finances from their partner’s (or a joint) bank account is not advised.
If debt was acquired during the relationship it may be divided equally.
Division of joint property must be determined through proper and detailed financial disclosure. This can take some time depending on the size of the asset base and cooperation of the other partner.
Some guidance is available from the provincial government, which offers a range of online information services for Alberta residents on separation, divorce, shared parenting and related issues. This includes information on filing a claim under the provincial Family Law Act (when the process of divorce has not yet begun) and affidavits and other documents.
We've written a post entitled "What are your Financial Rights During Separation" which goes into this topic in more detail.
If you are concerned that your rights are being compromised during your separation process, you should seek immediate legal counsel.
The process and paperwork of separation can be overwhelming and difficult to navigate. Working with an Alberta family law specialist will ensure that you’ve completed the right paperwork and that you and your family are protected during this transition and when you move into the formal divorce process.