Separation agreement paves path to well-structured divorce
By Jennifer Brown, AdvocateDaily.com Senior Editor
Couples might be tempted to skip the separation agreement when they split, but it is an essential first step towards ensuring a smooth transition to divorce proceedings, says St. Catharines family lawyer and mediator Sharon Silbert.
“It is fairly common to get the question, ‘Can’t I just file for a divorce right away?’” says Silbert, principal of Sharon B. Silbert Professional Corporation. “The answer, in most cases, is that it’s not a good idea. Having a proper separation agreement completed before the application for divorce gets filed is usually the better route.”
Doing the separation agreement first helps to ensure there are no unpleasant surprises, she says.
“The number one reason is to make sure the application for divorce goes through uncontested,” Silbert tells AdvocateDaily.com. “When a person files for divorce, they are filing a form with the court where they are asking for a divorce order to be issued. The application has to be served on the other party, and they have 30 days to file an answer.
“The applicant may not want anything from the other person, and may just ask that the marriage be dissolved so they can get remarried,” she says. “But the responding party has an opportunity to make any claims they want, which could include custody and access, child support, spousal support, division of property, and so on.”
Some couples may worry that a separation agreement introduces an unwanted additional expense, but Silbert says it’s not the case, especially where children are a factor.
“Under the Divorce Act, judges who are considering divorce applications have an obligation to make sure that child support is being paid before they make the order,” she says.
“If there is no separation agreement and nothing binding concerning child support, the person who has applied for a divorce may run into difficulty when they get to the stage of filing the affidavit for divorce because it asks for the details of the child support arrangement,” Silbert says.
Even in situations where couples have agreed to divorce without concerns about making claims, Silbert says feelings can change over time. If a divorce is granted before property issues get settled, that can affect a person’s ability to claim equalization of net family property, because it shortens the limitation period.
“That’s another excellent reason why it’s better to complete a separation agreement before filing the divorce application. That way, all property issues would be resolved, and the limitation period would be a non-issue,” she says.
“If something was to go sideways after the divorce application is filed, the costs to deal with the unexpected might be greater than the costs of completing a separation agreement,” Silbert says. “It usually costs less to do something right the first time rather than trying to cut corners and have to deal with the unanticipated fallout.”