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Difference between revisions of "Separation and Separation Agreements"
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Separation and Separation Agreements (view source)
Revision as of 03:37, 13 May 2021
, 03:37, 13 May 2021→A separation agreement can deal with property and debt
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* a couple jointly decides to end their relationship. | * a couple jointly decides to end their relationship. | ||
==Why make a separation agreement== | ===Why make a separation agreement=== | ||
A '''separation agreement''' is a written and signed document. It records how a couple has agreed to settle their family law issues. | A '''separation agreement''' is a written and signed document. It records how a couple has agreed to settle their family law issues. | ||
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===A separation agreement can deal with support and parenting arrangements=== | ===A separation agreement can deal with support and parenting arrangements=== | ||
For married and unmarried spouses, a separation agreement can | For married and unmarried spouses, a separation agreement can cover many different family law issues, including whether a spouse should receive financial help — and, if so, who should get it and how much. This is called '''spousal support'''. | ||
For parents, there may be additional family law issues in a separation agreement, including: | For parents, there may be additional family law issues in a separation agreement, including: | ||
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* How '''family property''' (property acquired during the relationship) will be divided. | * How '''family property''' (property acquired during the relationship) will be divided. | ||
* How responsibility for '''family | * How responsibility for '''family debts''' will be shared. | ||
[ | [https://www.canlii.org/en/bc/laws/stat/sbc-2011-c-25/latest/sbc-2011-c-25.html#sec84_smooth The ''Family Law Act'' provides guidelines] on what assets are considered family property and what debts are considered family debt. It also sets out the rules for how to divide that family property and debt. Basically, when a couple separates, each spouse has a right to equally share in property they acquired together. Each spouse also gets a share of the ''increase'' in value of any property that either brought into the relationship. The law calls this increase family property as well. | ||
The Act also sets out how to handle '''excluded property''' (assets that are '''not''' family property). This can be complicated — if you have a lot of assets, you should get help from a lawyer. | The Act also sets out how to handle '''excluded property''' (assets that are '''not''' family property). This can be complicated — if you have a lot of assets, you should get help from a lawyer. | ||
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First, you can get a lawyer. They might be able to help with negotiating an agreement. | First, you can get a lawyer. They might be able to help with negotiating an agreement. | ||
Second, you can suggest '''mediation'''. | Second, you can suggest ways to work out an agreement without going to court. One way is '''mediation'''. This involves meeting with a neutral person, a mediator, who helps you both find a solution you agree on. Or you can suggest a '''collaborative negotiation''' approach. This is a kind of negotiation where you each have your own lawyer and agree you will do everything possible to reach an agreement without going to court. A third way you might suggest is '''arbitration'''. This involves hiring a neutral third party to make decisions about your dispute. You and your spouse agree to be bound by these decisions. [[Mediation and Collaborative Practice|We explain all of these options here]]. | ||
Lastly, you can go to court. Know that this approach will be more expensive, stressful, and adversarial. | Lastly, you can go to court. Know that this approach will be more expensive, stressful, and adversarial. | ||
===Are mediation or collaborative | ===Are mediation or collaborative negotiation helpful?=== | ||
Both the BC ''Family Law Act'' and the ''Divorce Act'' encourage separated spouses to resolve their family law issues out of court. Using negotiation or mediation is a good idea — unless it would be inappropriate in the circumstances (for example, where there has been family violence). | Both the BC ''Family Law Act'' and the ''Divorce Act'' encourage separated spouses to resolve their family law issues out of court. Using negotiation or mediation is a good idea — unless it would be inappropriate in the circumstances (for example, where there has been family violence). | ||
You and your partner may want to make decisions together. But you may be having trouble negotiating with one another. '''Mediation''' can help. A trained family law mediator, such as a family justice counsellor or a private mediator, can work with you. They can help you to develop a parenting plan for the children and help you make other decisions as well. | You and your partner may ''want'' to make decisions together. But you may be having trouble negotiating with one another. '''Mediation''' can help. A trained family law mediator, such as a family justice counsellor or a private mediator, can work with you. They can help you to develop a parenting plan for the children and help you make other decisions as well. | ||
A '''collaborative | A '''collaborative negotiation''' approach may also be used to settle things. Here, the couple and their lawyers agree to work together. They can negotiate an agreement. The couple and their lawyers sign a collaborative participation agreement saying no one will go to court or threaten to. If the collaborative negotiation process breaks down, the spouses must hire new lawyers if they want to go to court. | ||
For more on these options, [[Mediation and Collaborative Practice|see our information on mediation and collaborative | For more on these options, [[Mediation and Collaborative Practice|see our information on mediation and collaborative negotiation]]. | ||
===What happens if one spouse dies during negotiations?=== | ===What happens if one spouse dies during negotiations?=== | ||
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===Should we file our separation agreement in court?=== | ===Should we file our separation agreement in court?=== | ||
You don’t have to file your completed separation agreement in court. But if you do, you can file in BC Provincial (Family) Court or BC Supreme Court. Filed agreements that include terms about parenting and support can be enforced as if they are court orders. | You don’t ''have'' to file your completed separation agreement in court. But if you do, you can file in BC Provincial (Family) Court or BC Supreme Court. Filed agreements that include terms about parenting and support can be enforced as if they are court orders. | ||
{| class="wikitable" | {| class="wikitable" | ||
|align="left"|'''Tip''' | |align="left"|'''Tip''' | ||
Legal Aid BC has self-help guides that can help you with [https:// | Legal Aid BC has self-help guides that can help you with [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements/file-your-agreement-provincial-court filing your agreement in BC Provincial Court] or [https://family.legalaid.bc.ca/bc-legal-system/legal-forms-documents/agreements/file-your-agreement-supreme-court in BC Supreme Court]. It’s free to file an agreement in Provincial Court. You have to pay a court filing fee and fill out an extra form if you file in Supreme Court. | ||
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