Separation and divorce are not easy. It will take some time to work out all of the details. Dealing with the emotional, financial and legal changes will take patience and strength. It is important to take care of yourself during this highly emotional and anxious period in your life. Be sure to rest, eat healthy, stay active, have a support network and seek help.
In the beginning, it might seem impossible to work out a settlement with your former spouse. But in BC, about 50% of couples are able to reach an agreement without going to court. And, even after one or both parties start a court process, most separating couples still resolve issues without ever going to trial. In fact, only 6% of couples ever go to a trial.
So, chances are, you and your partner will find a way to work things out before there is a trial. That’s great news! Working things out helps agreements be reached sooner, at less cost, and with far less stress and frustration, compared to going before a judge for a court-ordered separation or divorce.
Most couples manage their finances jointly. The income from both spouses is used to pay for all household and personal expenses. At the end of a relationship, the spouses need to separate their finances. Both spouses need to assess their financial situation and begin to manage money separately. The sooner you deal with separating your finances, the easier and less stressful your separation will be.
First, you need to do a financial inventory of your assets and debts. You need to figure what you own and what you owe. For some things, like a home or a car, this may mean that you need to get a market assessment to determine their value.
Next, you will need to separate your accounts. If you have joint bank accounts, credit cards, loans and investments, you should talk to your financial institutions to create separate accounts. Make copies of the value of each of the accounts before and after they are separated.
Finally, you will want to work out your net worth and set up a budget so that you can manage your own finances moving forward.
Whether you are working it out or going to court it is important to know your basic rights and responsibilities as a spouse and a parent.
In BC, a spouse is someone in a married or common law relationship. A couple is in a common law relationship if they are unmarried but have lived in a “marriage-like relationship” for two years or more.
At the end of a relationship, each spouse has certain legal rights and responsibilities. Generally speaking, your rights are the same whether you were married or if you were in a common law relationship.
The major difference between married and common law spouses is that married spouses have to apply for a divorce if they no longer wish to be married. A common law couple does not need a court order to declare they are no longer spouses.
In BC, separating couples can use the Family Law Act while married couples can use the Family Law Act or the Divorce Act.
Common law - > Family Law Act
Married - > Family Law Act or Divorce Act
At the end of a relationship, each spouse has certain legal rights and responsibilities. Generally speaking, your rights are the same whether you were married or if you were in a common law relationship. Both in legal and practical terms, separating couples need to make decisions about these matters:
1. Care of Children
Parents are responsible for caring for their children, and must make parenting decisions that are in the best interests of the children. Generally, as a parent, you are a guardian of your children and you are responsible for their care.
The law does not specifically say how a child is to split their time with each parent or with whom they are to live. But courts tend to order arrangements where child care is shared by both parents as this is often in the best interests of the child.
You will need to come to an agreement about where and with whom the child will be living and when the child will have time with each parent. You should also set out which parent has what parenting responsibilities (such as making decisions on the child’s health care, or education).
2. Child Support
Parents have a legal responsibility to support their children financially. This is called child support: One parent pays the other to help cover the costs of caring for the children. Usually the parent that the child spends less time with will pay the support.
In addition to basic child support, parents also have the responsibility to pay for special or extraordinary expenses of the children – such as music lessons or an unexpected school field trip. Special expenses are generally paid proportionately, according to the income of each parent.
The Canadian government has established child support amount for separating parents. The amount depends on the type of custody, the number of dependent children, the province where the children will live and annual income.
To calculate the right amount of child support, you need to know the type of custody you have: sole custody or shared custody.
When your child spends more than 60% of the time
When your children spend at least 40% of the time
Use the Child Support Calculator to determine the suitable amount for your family situation. If your parenting arrangement is sole custody, you can enter the income as presented. If your parenting arrangement is shared custody, then both parents enter their information and the monthly support payment is the difference between the two amounts.
3. Spousal Support
Spousal support is money paid by one spouse to the other, at the end of a relationship. It is important to understand that spousal support is NOT an automatic right for either of the spouses. One spouse needs to show that s/he was financially disadvantaged by the relationship or by the other spouse ending the relationship.
Judges are more likely to order spousal support when:
The SAGG provides a baseline financial range that the courts will usually follow when ordering spousal support. Use MySupportCalculator.ca to determine what support should be paid. A sample result is provided in the illustration.
4. Property Division
Property division is the legal term that describes how you and your former spouse separate what you own and what you owe. Legally speaking, the common practice is for everything you acquired during your relationship – what you own and what owe – is to be split 50-50. This type of property is called “family property”.
The things you owned before the relationship you get to keep, except if there was an increase in its value which is split 50-50. Items that are not family property are called “excluded property”.
The most effective, fastest, cheapest, and collaborative resolution is to create a separation agreement. This is a written agreement between you and your former spouse detailing how you will move forward. It is basically a contract that sets out how you two are to behave. You must both agree to it of your own free will. The agreement is binding once it's signed and can be enforced by the court if either of you fail to live up to it. If the agreement is about property or spousal support, the signature should be witnessed by at least one other person who is an adult.
Before sitting down to negotiate with your former spouse, take a moment to review the Separation Agreement Worksheet. Go through the questions and think about how you would respond. Take this worksheet with you when negotiating a settlement, as it can help guide the conversation and get you both to consider important questions about your separation.
Reaching Settlement Tips
1) Stay future focused – It will be tempting to bring up the past, however, if it’s not going to help you reach an agreement, avoid bringing it up. It’s natural to feel angry or hurt after a break up, but if your goal is to settle matters, don’t let your emotions take control.
2) Remember to breathe – This may seem obvious, but when we are stressed we tend to hold our breath. By consciously thinking about breathing you can let go of the built up tension and avoid blowing up.
3) You won’t get it all – You will probably not get everything you want. You will need to compromise. Stay realistic and find an agreement that will work for you.
4) Listen – Really listen to what your former spouse is saying. Let them finish speaking before you start talking. A good tip is to paraphrase what they just said, this shows that you’re listening and helps prevent misunderstandings. To paraphrase use phrases like “If I understand you correctly you want...” “I’m hearing that you find it important that...”
5) Stay Cool – Don’t lose your temper. You will achieve more if you can express yourself in a calm and reasoned manner.
6) Think it over – Give yourself time to consider all the implications of the agreement, both immediate and longer-term. It is a good idea to see a lawyer before you sign the agreement, to make sure that you have protected your rights. A lawyer can go through the agreement and explain any defects or risks. You should see a different lawyer from the one your former spouse sees.
7) Have clear objectives – Figuring out what you want before you go into negotiations is key. Knowing what’s important to you will help you avoid being caught off guard. Before you sit down to negotiate, fill out My Priorities Worksheet.
8) File it – The court can only enforce your agreement if it has been filed. You can file your separation agreement with the court anytime, however it’s best to do it right away. To file your agreement, take a copy of your signed agreement to the Provincial Court or Supreme Court registry and ask to have it filed. Once it is registered, the court will treat your agreement as if it were a court order.
IMPORTANT: This page provides legal information, not legal advice. If you need legal advice consult a lawyer.
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