The following steps should position you for an agreement that helps you move on with your life without unnecessary delays, hardship, or stress…
Consult with an Alberta divorce lawyer before separation
Nobody wants to divorce unless it’s absolutely necessary. You must be convinced that your marriage is irretrievably broken or you should not even be considering divorce – especially if there are children in the relationship.
If there is any uncertainty, this is no time to be working on a separation agreement. It is time to attend marriage counseling. Only after have you and/or your partner have ruled out a reconciliation should you seriously start preparing for separation.
One of the first steps to take after you decide to divorce is to talk to a divorce lawyer. There is no legal requirement to hire a lawyer to file for divorce but the stakes are high and, at this stressful time, it can be of great assistance to be able to turn to a professional with your best interests at heart.
Potential issues are many, relating to child custody and parenting, spousal support, child support, and property and debt division.
Even if you and your spouse can talk through matters, it is unlikely that you both have a firm understanding of divorce law in Alberta. A lawyer will bring this insight to your discussions, ensure that you cover all the salient aspects of divorce, and can help you draw up your agreement later.
Full financial disclosure is required when making decisions and your lawyer can provide guidance on gathering the relevant information for this. He or she will also provide valuable advice on what your other rights and obligations are.
Talk about parenting arrangements
If you have children, there are many important questions that you and your spouse need to find answers for:
How will you share parenting time and responsibilities?
Who will the children live with most of the time?
Who will make decisions regarding their upbringing?
How will other family members (e.g., grandparents) maintain contact with the children?
Where will the children spend weekends and holidays?
How will they maintain contact with the parent who does not have physical custody?
How will you communicate as parents?
If supervised visits with one parent are necessary, how will they be arranged and who will pay?
If one parent has to travel to see the children, how will that be arranged?
Do you intend to move out of town/state with the children?
How are child benefit and parental tax rights affected by the separation?
It helps to start thinking about and discussing these questions. However, children stir strong emotions and discussions can lead to disputes. The presence of a lawyer can keep you and your spouse focused on the most important consideration: what’s best for the children?
Tackle the subject of partner/spousal support
Spousal or partner support is another of the major items that potentially creates problems between separating couples.
If you are both aware of the support guidelines in Alberta, it should help the discussion and prevent conflict. Ask yourself the following questions with spousal support:
Have you shared full and accurate financial information?
Will one partner/spouse pay support to the other? (Refer to the spousal support advisory guidelines in Alberta)
How will you share extraordinary expenses (e.g., medical and dental expenses)?
How long will support be paid for?
Will it be paid monthly in cash – or by another method?
If there are significant changes in circumstances for either spouse, how will that affect support payments?
How will support payments be enforced?
What are the tax consequences of paying or receiving support?
The matrimonial home, property and finances
In many cases, the matrimonial home is the single most valuable investment in a marriage. Moving out of it may be unwise in terms of your negotiating position with your spouse.
A general rule is to at least have an interim parenting arrangement in place before moving out of the home.
It can be difficult to change a parenting schedule once a status quo exists. The Alberta courts like to see children have set routines that they are used to – and changes may be discouraged unless they can be shown to be in the child’s best interests.
It is worth remembering that the best interests of the children are always the priority of the court – and the same should apply in any parenting agreement between you and your spouse.
Buying or selling property
Buying or selling a property during a separation can be problematic for a parent’s position regarding parenting and/or ongoing support obligations.
Generally, it is best avoided until you have a separation agreement in place.
Once that is done, meet with a financial or mortgage advisor. You may need to decide whether or not you can afford to remain in the matrimonial home or sell up and downsize, for instance. Take the proper financial advice before making any major decisions.
Monitor the finances
Whether or not you have a joint bank account, it’s important to make sure that you and your partner are transparent about your finances as you prepare for your separation agreement.
If your partner is secretly removing funds from a joint bank account, you need to know about it. If credit card bills are mounting up or other lines of credit that you are at least partly responsible for paying are being used, you also need to be aware.
Monitor finances carefully after you separate and make sure that you can account for where the money is going.
There are many considerations when preparing for a separation agreement in Alberta and it generally helps to have the experience and guidance of a lawyer to turn to.