What Is The Difference Between Divorce & Separation?
Posted by on Oct 28, 2021 in Blog, Divorce Law, Family Law
Many people consider the terms “divorce” and “separation” to be interchangeable – but this is not the case.
At the most basic level, a divorce means that you are no longer legally married while separation indicates that you and your spouse are living separate lives but are still legally married under the court.
While this distinction may seem simple, it’s important to understand the difference between divorce and separation in order to understand the implications of each.
As a newlywed, you probably didn’t think about getting a divorce or separation. However, splitting up is an unfortunate reality for many married couples and it’s important to understand your options.
Keep reading to learn about these important differences and some of the circumstances that dictate why a couple may choose one option over the other.
What is Divorce?
Divorce is the solution for many couples that experience a breakdown in their marriage. Couples that choose to file for divorce will no longer be legally married.
This means that any spousal benefits are lost and certain provisions outlining child custody, property ownership, spousal support, etc. must be outlined before a divorce is granted.
In some circumstances, the court may grant a divorce on the promise that these issues will be dealt with at a later date.
The Divorce Process in Alberta
When filing for divorce, you will need the necessary grounds for doing so. These include living separate and apart from your spouse for 1 year, adultery, or physical/mental cruelty.
While a lawyer is not required to file for divorce, having one is highly recommended. They can properly prepare the required documents as well as help you in making your claims.
Once the divorce is filed with the courts, a copy must be served to your spouse and they will have 20 days to reply to your claim (one month if they are outside of Alberta and two months if they are outside of Canada).
If your spouse agrees with the terms of the divorce, there is no court hearing and a judge will review your claim and grant a divorce judgment. From there, your divorce will be considered finalized after 31 days.
If your spouse does not agree, they can contest the divorce. This means you will have to take your claim to court.
Why Do Couples Choose Divorce?
Here are some of the reasons why a couple may choose to divorce rather than separate:
- One or both spouses may be looking to remarry or have hopes of remarrying in the future.
- There is no clear benefit (medical insurance, pensions, etc.) to either spouse that would warrant staying legally married.
- One spouse no longer wants any connection with the other spouse including having them as their next of kin.
- The couple is already separated and wishes to terminate the marriage.
- Each spouse wants no legal ties whatsoever to the other.
What is Separation?
Separation differs from divorce because you and your spouse remain legally married even though you are living separate lives.
A couple may choose to be separated before they divorce but this is not required.
A separation allows couples an opportunity to spend some time away from the conflict or marriage in order to decide if a permanent separation or divorce is appropriate in their situation.
Once separation is chosen, the couple will want to enter into a separation agreement that settles all matters regarding custody, property, etc.
It is important to note that separated spouses are not permitted to re-marry since they are still considered to be legally married.
How to End a Separation
If you separate from your spouse but you decide to end the separation agreement, you can file a motion to dismiss the original order. Any property division or child custody agreements will be nullified.
When you write a motion to dismiss, it’s important to have the document reviewed by a lawyer. They can make sure you’ve included all of the necessary information so there are no delays in the process.
Your motion must be filed in front of a notary before they are filed with the court clerk. Your motion will be presented in court during a hearing where a judge will dismiss the separation order.
Why Do Couples Choose Separation?
There are some reasons why couples would choose to separate instead of divorce, such as:
- A separation agreement is generally less expensive than a divorce because there is no need to go to court. The agreement can be handled completely through your lawyers.
- The same issues that are dealt with in a divorce (child custody, spousal support, property divisions, etc.) can be dealt with through a separation agreement.
- Medical benefits, pensions, etc. are retained because you are still legally married.
- Some religious beliefs conflict with the idea of divorce so a separation allows you to live separately while maintaining your marital status.
- It allows couples to resolve issues (such as custody and finances) while keeping their marriage intact in order to determine what the best choice is.
- A legal separation is reversible while a divorce is not.
Can a Separation Agreement Be Converted Into a Divorce Settlement Agreement?
Yes. If at any time during the separation the decision to divorce is made, the separation agreement can easily be converted into a divorce settlement agreement.
This does involve some cost savings since both spouses will not have to spend time going through the family court system.
Divorce and Separation in Alberta
If you are considering a separation or divorce, our team at Heritage Law is here to help you.
Ending a marriage is a legal process but it can be an emotional challenge as well.
We keep your best interests in mind and will make sure that you have all the information and resources available to help you make the best decision for yourself and your family. Contact us today for more information.
