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Divorce Process – You Decided to Separate, Now What?

In this blog, we will discuss the following:

  • What constitutes a spouse, are you married or common law?
  • Limitation Periods – do you have the right to ask for support or property division?
  • You decided to separate – what does this mean?
  • So many options – Lawyers, mediators, arbitrators, courts…

Who is a Spouse?

In British Columbia, you are a spouse under the Family Law Act if:

  • You are or were married
  • You have lived with another person in a marriage-like relationship, sometimes called common-law, for a certain period of time

If you are common-law, you must have lived together for a minimum period of time to qualify as a spouse. In order to be considered a spouse for the purposes of dividing property or debt you must have lived together in a marriage-like relationship for at least two years.

But if you are applying for spousal support, you are considered a spouse if you have lived together in a marriage-like relationship for less than two years and have a child together.

Under the law, the start date of a spousal relationship is the day two individuals begin living together in a marriage-like relationship, or the day they were married, whichever is first.

Limitation Periods

If you fit within the meaning of a “spouse”, then do not forget about the Limitation Periods! Pursuant to section 195 of the Family Law Act, you must remember that a spouse can start a proceeding for an order for property division, pension division, or child and spousal support:

  1. No later than two (2) years after either divorce (if you were married) or;
  2. No later than two (2) years after you have seized leaving in a marriage-like relationship (two years since the separation).

Of course, these are serious rules, but sometimes not necessarily as stringent as they sound. For example, the running of the time limits set out above are suspended during any period in which you and your spouse have engaged in a family dispute resolution with a family dispute resolution professional. For example, if you and your spouse were involved in negotiations with your Family Justice Counsellor or there has been discussions between lawyers, the time limits have been suspended. If you are not sure whether your time limits are running out, we would suggest seeing a lawyer immediately for a consultation! It is worth it to find out about your rights and options and you do not necessarily have to hire that lawyer right away, you can leave and think about it!

Separation

Number one question newly separated clients ask is “what is legal separation and how do I do it?”. Should you draft a separation note and sign it? Should you agree on a date? In fact, no, you do not need to do any of this. You do not even have to move out of the house to be separated! The terminology used for separation is “being separate and apart”. Considering the cost of living reality in British Columbia, you can remain living in the same physical space, but still be separate and apart. Of course, if the living arrangements are not a practicable possibility due to conflict, then you should consider actually moving out. If you are amicable, perhaps you can stay in the home until you resolve your separation process! Once you decide to separate, then that is it. You can have a discussion about it and approximate the date of the separation. The date of separation is most important when it comes to time limits (see above), so again, do not hesitate to contact us for a consultation to discuss your options!

Options

This is the part of the consultation that depends heavily on your circumstances. A good lawyer will be able to quickly tell you what options seem good and which option should be avoided. For example, if you have already been served with a legal document filed in court, “wait and see” option hardly seems reasonable to suggest. However, if you have not even discussed your separation with your spouse, then “wait and see” option becomes viable and, in fact, rather sensible option (again, in cases when there are no conflicts or issues of violence). You do not have to go the route of lawyers and court should be the last resort in family law cases. You can consider discussing resolution with your spouse alone and drafting a separation agreement with the help of a lawyer or go through Family Justice Counsellors. However, when the issues become more complex, and you have to deal with parenting issues, division of debts and assets, figuring out business structure and incomes of parties, among many other issues, then you should seek consultation of a lawyer who will gladly guide you toward an option that is right for you!

Call us to make an appointment today at 604-477-1077 and we will gladly meet with you to discuss your particular situation! 

 

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