Understanding Separation vs. Divorce: Make the Smart Choice

Understanding Separation vs. Divorce
  • Legal Status: After a divorce, your marriage has been legally ended, and both parties are free to remarry. In contrast, separation does not legally end a marriage. Therefore, even though you and your spouse live separately, you are still legally married.
  • Resolution of Matters: In a separation, property division, child custody, and spousal support can be negotiated and formalized in a separation agreement. In a divorce, a court can decide these issues, but parties can also negotiate and resolve these matters outside of court.
  • Religious and Personal Beliefs: Some people may choose separation over divorce due to religious beliefs or personal reasons. In such cases, a comprehensive separation agreement can protect each party’s rights and interests.
  • Financial Implications: The financial implications of separation and divorce can vary greatly depending on the couple’s circumstances. It’s essential to consult with a legal expert or financial advisor to understand the potential financial consequences of each.
Spouses can be having issues in their marriages and not choose to end it yet for good reasons. You can opt for a trial separation if you still want to stay married to each other. This type of separation is a voluntary one and does not require any court filings. However, if the trial separation is to go on for more than two months, spouses can decide to agree on the terms.  This includes the timeframe, handling of the finances, child support and custody, and other important items.
When partners are burned out on each other, constantly “setting each other off,” and acting out in destructive ways, Therapeutic Separation (TS) is recommended. It is a set period of time during which you continue your work in therapy, remain a couple, but live apart. The “time away” is planned and intended to allow partners to relax and regroup so that they can focus and energise. These become the Terms of Separation

  • Financial management
  • Sex and intimacy with each other or others during the time apart**
  • Managing “family time” if desired during the Therapeutic Separation
  • Concerns about privacy (who they tell, and what is permissible to say)
  • Children’s care and visitation, as well as minimising the impact on children
  • Setting boundaries for “heavy” discussions and date nights
  • Pet care, parental duties, and household chores

It should be noted that in the most successful Therapeutic Separation, the couple remains monogamous. It is recommended no introduction of any dating, as it destabilizes the marriage. The goal Therapeutic Separation is to keep the energy IN the marriage.

Legal separation can mostly be filed directly in a court in some of the states. Starting with a written petition also known as a complaint, you can go to your local court and file for separation. This has the same process as divorce. The judge will either decide for the couples or they both will agree on marriage-related issues like child custody and support, alimony, and property division The court will provide the formal settlement agreement form after everything is resolved. If the agreement seems to be okay by the court, they will then issue the orders and declare the couples legally separated.
  • Child Arrangements: During separation and divorce, decisions need to be made about the child arrangements, how parenting time will be arranged, and how the children will be financially supported.
  • Spousal Support: The issue of spousal support, also known as alimony, can arise in separation and divorce situations. The aim is to limit any unfair economic effects of a divorce or separation by providing ongoing income to a non-wage-earning or lower-wage-earning spouse.
  • Property Division: The division of property, including assets like homes, cars, and savings, as well as liabilities like mortgages and debts, is a common element in separation and divorce. The division can be determined through mutual agreement or, if necessary, a court order.
Why get a legal separation instead of a divorce?Ken Maynard CDFA, Acc.FM

This is a matter of personal preferences. Some spouses’ religious or personal beliefs may forbid them from divorce and so they opt for a legal separation that may allow them to remain married but living separately. Legal separation still allows them some benefits while still married to each other. They can still find time to resolve their issues while looking forward to what the future holds for them. The legal separation still has a good effect on your kids as you both remain married but a divorce can not be undone.

How does legal separation protect you?Ken Maynard CDFA, Acc.FM

In a legal separation, spouses can move on independently from their marriage without having to go through the divorce process. The legal separation allows spouses to provide health care benefits, social security benefits, tax benefits, and even pension benefits. If you want more information on how the legal separation can impact you, you can contact an experienced lawyer in the field.

Will legal separation protect me financially?Ken Maynard CDFA, Acc.FM

If you and your spouse are living apart without being legally separated, then you may merely be separated. This means that your period of living apart may not count towards an eventual divorce. Also, you would still have marital responsibilities towards your spouse during the period of living apart, if you are not legally separated. This can raise serious issues in the event of a divorce, especially if the decision to live apart was not mutual.

Can I date while legally separated?Ken Maynard CDFA, Acc.FM

There’s no straight answer to this question. Dating while legally separated may lead to complications if you choose to get a divorce. Your spouse could raise claims of adultery on that fact. However, if you and your spouse have agreed that you can see other people while legally separated, this may not be a problem. In either case, it will pay off to seek legal advice before you start seeing other people while legally separated.

Can you just stay separated forever?Ken Maynard CDFA, Acc.FM

Definitely. Even though the law uses the term “separate and apart”, you can live separate and apart under the same roof. Many couples already do this to financially support housing and living costs and their childern. So long as you do not have sex with your spouse or do any of the things that would make a court determine there was no legal separation, you can live together. The Divorce Act also allows couples to resume cohabitation for the purposes of reconciliation without interrupting their legal separation. The cohabitation must not span more than 90 days though.

What does legal separation cost?Ken Maynard CDFA, Acc.FM

At its most basic, legal separation does not cost you or your spouse anything. There is no legal process involved in deciding to legally separate. You and your spouse can do this on your own. However, drafting a legal settlement agreement will cost you some money. Professionals such as lawyers and divorce mediators can help you draft the agreement, although they may charge differently.

How to file for separation?Ken Maynard CDFA, Acc.FM

What about filing for separation in Ontario? There is no need or requirement to file for separation, nor do you for apply for separation meaning there are no court forms to fill out, however you can file your written agreement with the courts if you want, but that is not necessary.

What is the difference between divorced and legally separated?Ken Maynard CDFA, Acc.FM

The main difference between being divorced and legally separated is that divorce legally ends the marriage, while separation allows the couple to remain legally married but live apart.

Is separated a legal marital status?Ken Maynard CDFA, Acc.FM

Yes, in Canada, ‘separated’ is a legal marital status. It requires the couple to live separately for at least one year before they can file for divorce.

Is separation good for a marriage?Ken Maynard CDFA, Acc.FM

Separation can be beneficial for a marriage as it provides space for personal growth and reevaluation of the relationship. It can serve as a period of reflection and sometimes leads to reconciliation.

What is separation in Canada?Ken Maynard CDFA, Acc.FM

In Canada, separation occurs when a married couple decides to live apart while remaining legally married. It serves as a legal marital status after living separate lives for at least one year.

Is divorce the only option?Ken Maynard CDFA, Acc.FM

No, divorce is not the only option. Many couples consider legal separation before making the final decision to divorce. Separation can be a stepping stone or an alternative to divorce.

Is divorce the only option?Ken Maynard CDFA, Acc.FM

No, divorce is not the only option. Many couples consider legal separation before making the final decision to divorce. Separation can be a stepping stone or an alternative to divorce.

Is it better to separate or divorce?Ken Maynard CDFA, Acc.FM

Whether it’s better to separate or divorce depends on various factors, including emotional readiness, financial implications, and the potential for reconciliation. Separation allows you time to think, whereas divorce is a final legal action.

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About the Author:
Ken Maynard CDFA, Acc.FM

I assist intelligent and successful couples in crafting rapid, custom separation agreements that pave the way for a smooth transition towards a secure future. This efficient process is achieved in about four meetings, effectively sidestepping the excessive conflicts, confusion, and costs commonly linked to legal proceedings. Clients have the flexibility to collaborate with me either via video conference or in-person through a DTSW associate at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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Ken Maynard CDFA, Acc.FM