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Difference between revisions of "Separation and the Law"
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*each spouse becomes enttiled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only; | *each spouse becomes enttiled to a half-interest in all family property, whether that property is owned jointly or in the name of the other spouse only; | ||
*the spouses each become responsible (as between the spouses) for one half of family debts; | *the spouses each become responsible (as between the spouses) for one half of family debts; | ||
*any property either spouse obtains after the date of separation is | *any property either spouse obtains after the date of separation is their own separate property, and not family property; | ||
*any debt either spouse incurs after the date of separation is that spouse's sole responsibility; | *any debt either spouse incurs after the date of separation is that spouse's sole responsibility; | ||
*unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree; | *unmarried (ie. common-law) spouses have two years past the ''date of separation'' to start a claim in court for division of family property, spousal support, or sharing of family debts, if they cannot otherwise agree; | ||
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===Separation and children=== | ===Separation and children=== | ||
Under s. 39(1) of the ''Family Law Act'', a parent is a guardian of | Under s. 39(1) of the ''Family Law Act'', a parent is a guardian of their child both while the parents live together and remain guardians even after the parents separate. | ||
Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is <span class="noglossary">brief</span> and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents to take. You can find more information about this program and other issues relating to children and separation in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting after Separation]]. | Separation can be extraordinarily difficult on children. In most registries of the Provincial Court, couples are required to attend a Parenting After Separation program. This program, which is <span class="noglossary">brief</span> and free, teaches parents how to communicate with one another after separation and how to talk to their children about separation. It is an extremely useful program, and one which I encourage all separating parents to take. You can find more information about this program and other issues relating to children and separation in the [[Children in Family Law Matters|Children]] chapter, in the section [[Parenting after Separation]]. | ||
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===Bank accounts and credit cards=== | ===Bank accounts and credit cards=== | ||
You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling | You should remove your name from any joint bank accounts or credit cards. If your spouse has signing authority or debiting authority on any of your accounts or credit cards, you should consider cancelling their authority. | ||
Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the <span class="noglossary">account</span>. | Credit cards, loans and lines of credit can often be capped by telling the bank to make the accounts ''deposit only''. This will mean that no more withdrawals can be made and the only transactions that can take place are deposits. You could also tell the bank to reduce the credit limit to the current balance on the <span class="noglossary">account</span>. | ||
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===Insurance policies, pensions and RRSPs=== | ===Insurance policies, pensions and RRSPs=== | ||
You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an <span class="noglossary">account</span>, your bank or insurance company may require your spouse's consent to remove | You may wish to change the beneficiary of your insurance policies, pensions, and RRSP accounts if your spouse is the present beneficiary. If your spouse is the irrevocable beneficiary on such an <span class="noglossary">account</span>, your bank or insurance company may require your spouse's consent to remove their name as a beneficiary. | ||
===Jointly owned real estate=== | ===Jointly owned real estate=== | ||
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No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney. Always keep records of your revocation, and how and when you delivered the revocation. | No matter what your relationship status is, if you want to be sure that your power of attorney has been terminated, you need to prepare a written revocation and deliver a copy to all financial institutions where you have an account, as well as a copy to your spouse and anybody else you have appointed as your attorney. Always keep records of your revocation, and how and when you delivered the revocation. | ||
If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that | If you do still want your former spouse to be able to act as your attorney after you separate, then you should prepare a new power of attorney to make sure that they have a valid power of attorney. | ||
If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up. | If you wish to revoke an existing power of attorney or other authorization or to create a new one, you should speak with a wills and estates lawyer to have the proper documents drawn up. | ||
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You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture, and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture. | You may also wish to take a fair share, half or less than half, of the household property such as the children's clothing, the furniture, and your personal effects. However, I would really encourage you to think twice about this and proceed with caution. Yes, the odds are quite good that half the common household property is yours, but the last thing you want to do after separation is to ramp up the tension any further. If you absolutely cannot live without the dish set, then take the dish set, but otherwise it may be best to leave the dish set at home. Nothing looks worse than the spouse who takes half the glasses, half the cutlery, half of a dining room suite and half of the living room furniture. | ||
Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in | Now, this may seem a bit pessimistic, but you should also take a list of all of the property your spouse owns in their own name and of all the things the two of you own jointly. A detailed list, including balances and account numbers and serial numbers, would be ideal, but even something as simple as a list of the financial and other institutions you and your spouse deal with will do. You can collect that information by writing down the names and addresses of the people who are sending your spouse statements; you don't even have to open the envelopes. This information could prove invaluable if you wind up in an <span class="noglossary">argument</span> about who owns what or the extent of the family property and family debt. | ||
==Sex and new relationships after separation== | ==Sex and new relationships after separation== | ||
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*'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it. | *'''Reconciliation:''' While simply having sex with your spouse won't count toward the 90-day period of reconciliation described above, it may if you begin to live with each other while you're doing it. | ||
*'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on | *'''Divorces based on adultery:''' If you are making a claim for a divorce based on your spouse's adultery, and you have sex with your spouse after you start the claim, you could be considered to have forgiven your spouse for the adulterous conduct. If you have forgiven your spouse, you will not be able to obtain a divorce based on their adultery. The same principle would probably also apply to divorce claims based on cruelty. | ||
===Sex with other people=== | ===Sex with other people=== | ||
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====Can it be a ground of divorce?==== | ====Can it be a ground of divorce?==== | ||
You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use | You cannot sue for divorce based on your own adultery. Now, if it's your spouse who has had sex with someone other than you following separation, you can use their adultery to get a divorce as long as you haven't already claimed a divorce for another reason like separation. | ||
===New relationships=== | ===New relationships=== | ||
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As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent. | As a general rule, people should be a bit careful about exposing the children to new relationships. It can be very confusing to deal with the idea of parents separating and then have to cope with the idea of a parent being involved with some stranger who appears to be stepping into the shoes of the other parent. | ||
You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting | You should take a lot of care in deciding how and when the children are introduced to new relationships. In general, older children are more likely to understand the new relationship; younger children are more apt to be confused by the new relationship, especially when the new person tries to "parent" the children themselves. Whether we like it or not, society teaches children a very Norman Rockwell/Hallmark Cards view of life: there are two parents, those parents love each other very much, and those parents are supposed to be together always. You should ask any new partner to be sensitive to these issues and to avoid presenting themself to the children as an alternate parent. | ||
====What if there are a lot of "new" relationships?==== | ====What if there are a lot of "new" relationships?==== | ||
Sometimes a newly separated spouse feels the need to go out and explore | Sometimes a newly separated spouse feels the need to go out and explore their options, so to speak, and engages in a series of short-term relationships. This will be very difficult for children of all ages to deal with, if they're aware it's going on. It's one thing to have your parents' relationship break up, which is difficult enough to deal with, but to be introduced to a parade of new people that a parent appears to be romantically involved with can be enormously confusing, and potentially lead to resentment and an alignment with the other parent. | ||
In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last. | In general, you shouldn't introduce your children to a new partner unless you are sure of the new relationship and expect to be in it for a good long while. If you're not sure about the longevity of the new relationship, be safe rather than sorry and don't introduce your children to your new partner until you're positive the new relationship will last. | ||
If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before | If you are the other parent, you may want to ask for an order or an agreement requiring the parent involved in the new relationship to be in that relationship for a certain amount of time — say five or six months at a minimum — before they introduce the children to the new person. That being said, while it is entirely reasonable to be concerned about the impact of the new relationship on the children, some caution is suggested. Before you interfere with things, make sure that your concerns about the children are well-founded and based on their interests rather than on your own emotional reaction to your ex's new relationships. | ||
===Becoming an unmarried spouse=== | ===Becoming an unmarried spouse=== | ||
