I want my divorce! What is the difference between separation and divorce?

Jack has had it.  If there was ever any possibility that they would reconcile, any such hopes have come to an end when he heard that Jill had retained the services of a lawyer. Jack has told Jill that he wanted a divorce, to which Jill has replied that he would get it “when he faced up with his responsibilities as a father and a husband!”.  Jack wonders if he needs Jill's consent to get a divorce.

 

When two spouses part ways, it is very common to hear them say that they “want a divorce”.  However, in a separation process the divorce itself is really just a legal formality that will put an official end to the marriage. Getting to the point where you can get a divorce is what takes so long and can be very difficult because in most cases you will want to settle all issues by way of a separation agreement.  Getting such an agreement through mediation, collaborative justice, lawyer-to-lawyer negotiation or a court process is your first step. When an agreement is signed, you then know what your rights and obligations towards your ex and your children will be in the future.  When all issues have been settled, getting the divorce is truly just a "paper process" which, while it still requires court intervention (the divorce can only be granted by court order), will not require the spouses to attend court and will not involve months of legal debates.  If you have been separated for one year and all issues have been settled in a separation agreement, you are entitled to obtain a divorce order with or without your ex’ consent.

 

This said, there is really no difference between being separated (once a final agreement has been signed by both parties) and being divorced, except for some of the following differences:

1. If you are divorced, you can get remarried (something you cannot do if you are not divorced).

 

2. If you are divorced, you may no longer qualify as a beneficiary under your ex-spouse’s health plan or pension plan (although certain health plans allows it in certain circumstances).  Some pension plans also require that you obtain a divorce order to prevent your ex to obtain, upon your death, your pension plan benefits.

 

It is common to see couples that never get a divorce and only have a separation agreement.  There is no difference in the eyes of the Canada Revenue Agency between a separated or divorced individual.  Often times, people are emotionally exhausted and simply do not want to engage any further legal costs getting a divorce until someone decides to get remarried.  For many people, however, getting a divorce is necessary to cut the emotional ties to their ex and many people get their divorce immediately after having signed their separation agreement. So ultimately, getting a divorce is, more often than not, simply a question of personal choice.

If I have to see you in court honey, you’ll have to pay my legal fees!

Jack and Jill have been trying to settle their separation issues by themselves for a couple of months now. Jill is getting frustrated with Jack because he does not seem to take their separation seriously.   She does not see any other options than to retain a lawyer and go to court.  She is convinced that once they go to court the judge will tell Jack what he needs to hear.  But when Jill finally met with her lawyer, she was a bit surprised by (and disappointed with) her lawyer’s comments and reluctance to engage into a court action.  She wonders if she hired the right lawyer…  In fact, Jill’s lawyer has explained to her that the court process is not only very time and emotionally consuming, it will also be very costly.  However, Jill is convinced that she will win hands down on all issues and that, in the end,  Jack will be responsible to pay for all her legal fees.

 

Many separated couples believe that going to court is the only way they can get someone to pay attention to what they are saying. They believe that they are right, the other spouse is wrong and that the court room will be the venue where the winner will take it all.   But legal fees to get there are a very important aspect to consider when making the decision to resort to the judicial system.  While a court may order the “losing” spouse to pay part of the other spouse’s legal costs to prepare and attend court, it is highly unlikely that the judge will order that ALL costs incurred be paid back to the “winning” party.   In addition, considering that most cases eventually settle out of court (less than 3% of all family court cases end in a trial, where costs orders are made), opportunities to get the big fat cost order are very rare.

 

In addition, it is not because a party wins in court the he/she will necessarily get his/her legal costs paid by the loosing party. In deciding whether a party should be responsible to pay for the other’s court costs, the judge will look at different factors such as: Were the parties reasonable?  Did the spouses make reasonable efforts to settle the case?  Did one of the parties fail to accept a reasonable offer? Did one spouse act in bad faith? Did one spouse pursue unrealistic claims? and the list goes on and on…

 

So no one should ever go to court thinking that they will win it all, or thinking that the other party will have to pay their legal fees.  When making the decision to go to court, you need to start from the premise that any and all legal fees paid to your lawyer will be on you, and that you will be lucky if at the end of the day a judge orders your ex to pay some of them.  This is why it is so important to make sure that you have tried every possible way to settle out of court before you chose this very lengthy and costly avenue.