Key Differences between Divorce and Legal Separation
In Ontario, couples facing relationship breakdowns often wonder whether to pursue a divorce or legal separation. While both options allow couples to live apart, they have distinct legal, financial, and emotional implications. Understanding these differences can help couples make informed decisions about their future.
Key Differences between Divorce and Legal Separation
1. Marital Status:
- Divorce: A divorce legally ends the marriage. Once a divorce is finalized, both individuals are no longer considered spouses in the eyes of the law, which means they are free to remarry.
- Legal Separation: In contrast, legal separation allows couples to live apart without officially ending their marriage. The marriage remains intact, meaning neither party can remarry unless they later decide to get a divorce.
2. Remarriage:
- Divorce: Once a divorce is granted, both parties can remarry. This is a key distinction that many people consider when choosing between divorce and legal separation.
- Legal Separation: A legally separated couple cannot remarry. The marriage is still valid, and remarriage would only be possible if the couple goes through the formal divorce process later on.
3. Financial Impact:
- Divorce: Financial obligations, such as spousal support, property division, and child custody, are determined during the divorce proceedings. A divorce can also affect pension entitlements, tax benefits, and estate planning. For instance, a divorced spouse is typically no longer entitled to inherit property unless specified in a will.
- Legal Separation: While legal separation allows for decisions regarding property division, child custody, and spousal support, some financial entitlements, such as certain tax benefits or pension rights, may continue as the couple remains legally married.
4. Emotional Considerations:
- Divorce: For some, divorce provides a sense of closure and allows both individuals to move forward with their lives independently. However, the finality of divorce can be emotionally challenging, especially if one party is not ready to sever ties completely.
- Legal Separation: A legal separation can offer a middle ground for couples who are uncertain about ending their marriage. It allows for physical and financial independence while keeping the option of reconciliation open. However, for some, the ambiguity of remaining legally married while living apart can create emotional strain.
How to Transition from Legal Separation to Divorce
Steps for Moving from Legal Separation to Divorce
- Meet the Residency Requirement: Before filing for divorce in Ontario, one or both spouses must have lived in the province for at least 12 months. If this requirement was met during the legal separation, it will already be fulfilled.
- Grounds for Divorce: In Ontario, the primary ground for divorce is the breakdown of the marriage, which is usually proven by living separately for at least one year. Since legal separation already establishes that the couple is living apart, this year-long period of separation may already be in progress or completed.
- File a Divorce Application: Either spouse can file a divorce application with the court. The application can be for a simple divorce, addressing only the dissolution of the marriage, or a more complex divorce that includes other matters such as property division or spousal support if these were not addressed in the separation agreement.
Legal and Financial Considerations When Transitioning from Separation to Divorce
- Separation Agreement: A legal separation often involves a separation agreement, which outlines the division of assets, spousal support, child support, and parenting arrangements. This agreement can simplify the divorce process, as many of these issues have already been addressed and may not need to be renegotiated.
- Review of Separation Agreement: Although a separation agreement can be used as the basis for the divorce settlement, it is essential to review its terms before filing for divorce. Financial circumstances, support needs, or living arrangements may have changed during the separation period, requiring updates to the agreement.
- Financial Entitlements: In some cases, financial entitlements, such as pensions or insurance policies, may change when a legal separation transitions into divorce. Consulting with a family lawyer can help ensure that you are aware of how your financial obligations and rights will be affected during the divorce process.
Impact of the Separation Agreement on the Divorce Process
- Property Division: If a separation agreement already outlines how property is divided, these terms typically carry over into the divorce process. Unless there is a significant change in circumstances, the court will often uphold the division of property as agreed in the separation agreement.
- Support Obligations: Spousal and child support obligations established in the separation agreement remain binding unless there is a material change in circumstances. Either party can request to revisit support terms during the divorce process, but the court will generally rely on the existing agreement if both parties have complied.
- Custody and Parenting Arrangements: The child custody and parenting arrangements agreed upon during the separation are likely to remain in place during the divorce. However, if one party seeks to change these terms, they may need to provide compelling reasons for the court to revisit the custody order.
Cost Comparison: Divorce vs. Legal Separation
Differences in the Costs Associated with Divorce vs. Legal Separation
- Legal Fees:
- Divorce: The cost of divorce in Ontario depends on whether the divorce is contested or uncontested. An uncontested divorce, where both parties agree on key issues like property division, support, and custody, can be relatively inexpensive. However, a contested divorce—where disagreements arise and court intervention is needed—can lead to substantial legal fees.
- Legal Separation: A legal separation typically involves drafting a separation agreement, which outlines the terms of living apart. While this doesn’t require going to court, each party is advised to hire a lawyer to ensure their interests are protected in the agreement. This legal advice comes with associated fees, although it is generally less expensive than the litigation involved in a contested divorce.
- Court Costs:
- Divorce: In Ontario, filing for divorce involves specific court fees, such as the application fee and additional costs if there are motions or hearings involved. These costs can add up, particularly if the case becomes complex or drawn out.
- Legal Separation: Legal separation does not require formal court involvement unless disputes arise that cannot be resolved through negotiation or mediation. This generally keeps court costs lower compared to a contested divorce.
- Other Costs:
- Divorce: Beyond legal and court fees, divorcing couples may face additional expenses such as hiring experts (e.g., appraisers for property valuations), financial advisors, or child specialists to resolve custody disputes. These costs can escalate, especially in contested cases.
- Legal Separation: Since legal separation is often a precursor to divorce, couples may eventually incur the costs of divorce proceedings if they later decide to dissolve the marriage. This means that the initial savings from opting for a separation might only delay the full costs of divorce.
Financial Implications of Each Process
- Divorce: In a divorce, financial matters such as property division, spousal support, and child support are legally binding and final once settled in court. While the costs of divorce can be higher upfront, the long-term financial certainty it provides (especially regarding assets and support obligations) might be beneficial for both parties.
- Legal Separation: The financial implications of legal separation may be less clear-cut. Since the marriage remains intact, certain financial obligations, such as shared debts or benefits (like health insurance), may continue. While separation agreements often address these matters, they may need to be revisited if the couple later files for divorce, potentially incurring additional legal fees.
Tips on Managing the Costs of Either Process
- Seek Legal Advice Early: Hiring a family lawyer early in the process can help couples understand their rights and obligations, potentially avoiding costly mistakes. Some lawyers offer flat fees for uncontested divorce or separation agreements, which can help manage legal expenses.
- Consider Mediation or Collaborative Divorce: Mediation or collaborative law can significantly reduce the costs of divorce or legal separation by keeping the process out of court. These methods allow couples to resolve their differences in a less adversarial and more cost-effective manner.
- Create a Detailed Separation Agreement: For those opting for legal separation, a well-crafted separation agreement can prevent disputes later, reducing the risk of costly litigation. Ensure that all aspects of finances, property, and support are addressed clearly to avoid future legal battles.
- Unbundled Legal Services: Some lawyers offer unbundled services, meaning they assist with specific parts of the divorce or separation process (such as drafting agreements or reviewing documents) without taking on the entire case. This can be a cost-effective option for couples who only need limited legal assistance.
