These terms are sometimes used interchangeably but they mean different things in a legal context. In order to separate, spouses don’t need to obtain any legal order or submit any paperwork. They can simply begin to lead their lives as “separate and apart” from each other. This most commonly means that one spouse moves out to live elsewhere, but can also include situations in which both parties remain in the matrimonial home but sleep in separate bedrooms, celebrate holidays separately, separate their finances, and/or stop sharing their schedules with each other. The way in which the parties file their tax returns can also be an indicator of whether or not spouses have legally separated.
Once a year has passed since the date of separation, the parties are eligible to apply for a divorce. Historically, a divorce application could also proceed on the grounds of infidelity or cruelty, but these are hard to prove in court and are generally not used very much today. A divorce application can be submitted jointly by the parties if they can agree on the terms of the divorce, or may be submitted by one of the parties. If it is submitted by one party and the other party agrees to the terms of the divorce set out in the application, the divorce may proceed as “uncontested”. If there is disagreement concerning the terms of the divorce, it will proceed on a “contested” basis and the terms in dispute must be resolved through negotiation or a judge’s order.
Upon separation, parties do not have to wait until they are eligible for divorce before solidifying the terms of their separation in a written agreement. If the spouses are able to negotiate and agree to the terms under which they will divide assets, care for their children, support their children, and support themselves, these terms can be incorporated into a separation agreement.
Typically, a separation agreement is drafted by one of the parties’ lawyers, signed by that party, and sent to the other party for his or her signature (upon that party’s receipt of independent legal advice). Once signed, the agreement can be either filed with the court in case of future need for enforcement, or held onto by the parties.
Many parties simply rely on a separation agreement and never actually complete the divorce process. If one of the parties wants to marry again, however, a divorce is necessary. If a separation agreement has already been drafted and signed, this agreement will simply be submitted along with the divorce application as the terms of the divorce.
If there is no separation agreement, the terms of the divorce will be outlined in the application by the applicant, and the responding party can contest them or not. Whether by negotiating or judge’s order, the final terms will be decided and included in the final divorce order. Thirty-one days after a judge issues the divorce order, the divorce will officially take effect.
It is impossible to tell at the outset how much the separation and/or divorce process will cost, because it’s impossible to tell how long it will take, or how much of the process will require the court’s intervention. As much as most people view their own divorce as “a simple one”, this is rarely the case.
Factors that indicate your matter will fall on the lower end of the cost spectrum include:
- Pre-negotiated terms of the separation or divorce;
- A willingness of both parties to negotiate these terms;
- A willingness of both parties to make complete and accurate financial disclosure;
- The ability of the parties to communicate productively with each other;
- A willingness of both parties to reach a settlement outside of court; and
- A small number of individual issues to be resolved.
Factors that indicate your matter will fall on the higher end of the cost spectrum include:
- Disagreement on the terms of the separation or divorce;
- Inability or unwillingness of one or both parties to negotiate these terms;
- An unwillingness of one or both parties to make complete and accurate financial disclosure;
- The inability of the parties to communicate productively;
- The need for the involvement of the courts in order to reach a settlement; and
- A larger number of individual issues (custody, support, division of assets, etc.) to be resolved.
Whatever form your divorce takes, you will need someone to provide advice and give you direction as to the next steps you’ll need to take. Tailor Law’s Toronto divorce lawyers are available to meet with you for a free consultation in which we can explore your options and make a solid plan to move forward. Give us a call anytime at 905-366-0202 to book your consultation.