Edmonton Divorce Law

I often have clients asking about how they can obtain a “legal” or “judicial” separation. Well, for starters, I tell them there is no such thing as a legal or judicial separation in Canada. Where I practice law, if you are married or in a common law relationship, you are considered to be separated as soon as you and your spouse or partner start living ‘separate and apart”. You do not need to apply to the court to be separated. In fact, you don’t even need to both agree to the separation. One partner can decide the relationship has ended and began living separate and apart.

If you are interested in Edmonton Divorce Law, or need a Edmonton family lawyer, please contact us at 1 877-788-9477 (toll free)

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I advise clients to communicate the intention to live separate and apart verbally to the other spouse or partner and follow up with it in writing, especially if the decision is not mutual. The separation date will be important when it comes time to file for divorce because under the Divorce Act, you must live separate and apart for at least one year before you can obtain a divorce, with the exception of cases involving adultery and cruelty. The date of separation will also be important with respect to the division of property and spousal support.

Usually separated spouses or partners live in different homes, but the courts have recognized that it is not always financially feasible to live in different homes and therefore will look at the particular circumstances of those parties living under the same roof. In this type of scenario, the courts will require the parties to prove that while they resided together under the same roof, they were not living together as a couple.

Edmonton Divorce Law

The Divorce Act encourages couples to work things out before a divorce is granted. It provides couples with up to 90 days where they can live together and resume their relationship. If they resume their relationship for over 90 days, however, the couple will be required to begin a new full one year separation period before a divorce can be granted.

If you are considering separation or have recently been separated, it is a good idea to speak to a family law lawyer to learn of your rights and obligations.

If you are interested in Edmonton Divorce Law, or need a Edmonton family lawyer, please contact us at 1 877-788-9477 (toll free)

Spousal Support: Variation and how to Protect Against It

When two spouses separate, the one who earns less income will often be entitled to receive spousal support. Spousal support, sometimes known as alimony, is a payment that one spouse makes to the other spouse to help with their living expenses or to compensate them for economic choices that were made during the relationship.

Spousal support most often takes the form of monthly payments, made by the spouse who earns more to the spouse who earns less. Once entitlement to spousal support is established, the size of these payments is determined by comparing the respective incomes of the two former spouses and applying a formula, set out in the Federal Spousal Support Advisory Guidelines to the difference between their incomes.

If you are interested in Edmonton Divorce Law, or need a Edmonton family lawyer, please contact us at 1 877-788-9477 (toll free)

As the income of one or both spouses can change over time, so can the amount of spousal support payable. If the payor spouse begins earning a higher income, or if the recipient spouse earns less income, the amount of support payable can increase.

Related: Flat Rate Legal Fees

The general principle is that in order to vary the amount of support payable, an applicant to the court must establish that there has been a “material change in circumstances” since the original court order or agreement for spousal support was put into place. A material change in circumstances can include situations such as retirement or serious injury or illness of one of the parties which results in their income changing.

I often advise my family law clients who will be paying support to protect themselves from a variation application and settle the issue by offering a lump-sum spousal support payment up front. The way this typically works is by first calculating the entire value of the stream of spousal support payments (say, $1,000 per month for 5 years, which has a total value of $60,000).

Edmonton Divorce Law

The payor spouse would then offer to pay a lump sum to the recipient spouse in an amount typically equal to 30-35% of the total value of the payments. This payment would be made at the time the parties’ assets are being split and would usually come out of the payor’s share of these assets. The whole arrangement would be enshrined in a separation agreement, which is an essential part of any negotiated divorce.

The advantage of a lump sum spousal support payment lies in its certainty. It eliminates the risk that either spouse will seek to vary the support arrangements several years later, which is an often costly and contentious affair.

If you are interested in Edmonton Divorce Law, or need a Edmonton family lawyer, please contact us at 1 877-788-9477 (toll free)


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