Melanie D. Flynn Law Office was created by its namesake with an Access to Justice Initiative inspired business model. We are passionate about providing accessible and affordable legal services by breaking down barriers and adapting to the ever-changing economic environment.
How Do You Legally Separate from Your Partner?
Short Answer: you only have to want to live “separate and apart” from your partner, whether you were common law or married, to legally separate from them. This means that you have:
1. Decided to end your relationship; and
2. Started to conduct yourself in a manner that shows that you want the relationship to be over.
Number one is an internal decision, while number two is in your external behaviours. If you have decided to break things off with your partner but you have not communicated that to them yet, you have not separated. You must communicate to the other person that you are ending the relationship and begin conducting separate lives. This may look like separating your finances by opening a bank account in just your name, one of you moving out, dividing up belongings, no longer doing activities together, and more.
Both of you do not have to be on the same page in order to legally separate, i.e. a legal separation can be achieved, as long as one partner wants to legally separate. Therefore, if one partner wants the relationship to continue while the other wants to end it, the relationship will end from a legal standpoint.
Long Answer: there are many legal issues that must be dealt with prior to finalizing a legal separation from your partner such as child support, child custody and parenting, spousal/partner support and property division.
It is important to note that you do not need to go to court in order to legally separate from your partner. If you were legally married, you will need to apply to the court to obtain a divorce to officially terminate the marriage, but separation can be done without a court’s involvement. Going to court is often a long tedious process that can become very expensive. This expense is not just financial, but it can also be emotionally and mentally draining, even with a lawyer fully representing you. The court process, although necessary in some cases, is often an emotionally and mentally draining process for everyone involved, whether or not you hire a lawyer. In order to know your rights and how the law applies to your specific situation, it is necessary to speak to a lawyer who practices family law in your province as some parts of family law differ from province to province.
As a lawyer myself and having grown up where money was tight, I sometimes recommend my clients go to court in family law cases. However, in the majority of the family law clients I speak with, I end up recommending alternative dispute resolution methods instead like mediation or negotiation. Of course, there are always exceptions and cases where court involvement is necessary for the parties to resolve their dispute, but in my professional experience the cases where court is absolutely necessary are in the minority. I have noticed a trend over my years of practice that most people who separate from their partners actually have a better chance of coming out of the separation in a better place financially, emotionally and in a shorter time by trying alternative dispute resolution measures rather than those who go to court. Now, my opinion here is drawn simply from my observation and experience as a family lawyer in Newfoundland and Labrador. Every case is different, because every family is different, even if they do have similarities. Not everyone can afford legal representation and not everyone wants to go out and get a lawyer, that’s why I have designed my practice with an accessible justice design.
So, how do you legally separate from your partner? Here’s your first steps, namely:
STEP 1: Know Your Rights and Responsibilities
The first thing you should do, is find out what you may be entitled to and what obligations do you have to fulfill. Of course, these will be different depending on whether your relationship was common law or married, whether children are involved, whether you have shared property or debts, etc. Legal information available online will give you a good sense of your general rights and responsibilities but how the law applies to your specific situation may not be as easily identified. That is why it is highly recommended that you go speak with a lawyer to find out about how the law applies to you and that lawyer can help you create a game plan for how to proceed. I believe that first appointment, the one that gives you an introduction to family law, is the one that can make all the difference. If you do not start on the right foot, you will have to find a way to put yourself back on the right foot later on. That’s not impossible, but it can definitely make things more difficult farther down the road in your case.
STEP 2: The Children Come First
The most important thing to consider when a relationship breaks down is causing the least amount of turbulence for any children involved on this journey. The courts are primarily concerned with the principle of the “best interests of the child” when dealing with relationship breakdown with children involved. You do not need to get your long-term plan together at this early stage, but your main priority upon splitting from your partner needs to be a short-term plan for the kids while any issues between you two are figured out. On a short-term basis, you need to think about the following things, namely:
· Where will the kids stay initially after the split?
· When will they see each parent?
· How much do you tell them about your split?
· Are the kids safe and cared for?
The long-term plan doesn’t have to be worked out right this second, but a temporary plan for the children needs to be made a priority to ensure the children make the transition as smoothly as possible. Children change and so do their needs as they grow and develop, so your parenting plan can also grow and develop with them. Maybe all of the plans you make for the children will be “short-term” and need to be reassessed by the parents regularly to ensure the children are getting what they need. Separation can have psychological effects on children but parents can make things easier for them. Separation in and of itself is not “traumatic” or “bad” for children, it can be altogether the best option for the whole family in many cases. There are ways to minimize the negative effects separation can have on children and make the transition easier for them. I recommend seeking out professional advice about this if you are concerned about the effect on your children.
STEP 3: Take Stock of Your Relationship
Property division, i.e. making a plan for dividing the assets and debts that were accumulated during the relationship will need to occur before a separation can be finalized. A lawyer can help you take stock or you can begin to do this yourself. In my practice, I have developed information handouts, checklists and worksheets to assist clients with the process of separation. The basics of this taking stock step is to identify all assets and debts currently in existence on the date you separated and inventory them. To finalize the separation, you will need to make a plan for what to do with each and every one of them. But, in the short-term you will just need to make sure that bills still get paid to avoid any damage to credit. The forms I use in my practice help to guide people through collecting the information and documents you need in order to finalize a separation through a number of methods like getting a separation agreement or court order to divide assets and debts. If you would like to access them, feel free to contact me to set-up a session.
STEP 4: Choose Your Dispute Resolution Method
In order to finalize your separation and resolve all of the outstanding legal issues, you can choose a variety of paths. Some options for resolving the legal issues are:
· Mediation – this can be done privately (paid out of pocket) or through a free program such as the Family Justice Services mediation in Newfoundland and Labrador. Mediation is an alternative dispute resolution process where a mediator helps to guide the parties to a mutually agreeable solution. This process can be flexible and allow a tailored-solution to your specific situation. The process is completely voluntary and no one can force you into an end result which allows you to keep you decision-making power. I offer private mediation services online by telephone or video call, for more information about mediation, click here;
· Negotiation – this involves communicating with your ex-partner directly, having a lawyer communicate with your ex-partner or their lawyer for you. This communication is done strategically to work toward a plan to resolve the outstanding legal issues like custody/parenting, child support, spousal/partner support, property division, etc. It often involves compromise and bargaining to come to a mutually agreeable resolution. This process can be flexible and allow for a tailor-made solution to your specific situation. This process is completely voluntary and no one can force you into an end result which allows you to keep your decision-making power;
· Court – this involves attending court appearances in front of a judge where the judge will guide the case toward a resolution. In this process, the judge will have the decision-making power but they are bound to make a decision that is in line with the letter of the law. You can still resolve your case by negotiation and coming to a settlement arrangement in many stages of the court process so you do not lose your decision-making power entirely in this process. This process is not entirely voluntary as you can be compelled by a judge to attend court. As well, if you are a party to a court action and refuse to participate or attend, a judge can still make an order that affects you without your involvement. This process is less flexible and I often describe it to people as a “one size fits all t-shirt”. It is made to fit such a wide population and think of every situation that could come up that sometimes it doesn’t fit everyone quite right. Judges do their best to customize that “one size fits all t-shirt” but it cannot always be done to the parties’ liking or comfort. It is a place of rigid rules and procedures that is not the most user-friendly experience for the general public. Therefore, it is best to at minimum seek legal advice to help you if you are representing yourself. I offer limited scope representation and unbundled services such as Legal Coaching that can help you represent yourself.
STEP 5: Finalizing Your Separation
There are essentially two ways to finalize the details of your separation, namely that you end up with either:
1. A Separation Agreement (contract) by coming to a mutually agreed upon resolution to your split; and/or
2. A Court Order (either by the judge deciding for you or you and your ex-partner coming to an agreement sometime along the way of the court process).
Once you have either of these documents, you should be done with your separation and able to move forward.
STEP 5: Moving On
After finalizing your separation by one or more legal documents, Court Order(s) or Separation Agreement, you should have all issues between you and your ex-partner resolved. At this time, your Order(s) or Agreement(s) will be able to be enforced if you or your ex-partner fail to hold up your end of the bargain. At this point, you should be able to move on independently without questions or issues left hanging over your head.
Created and distributed by Melanie D. Flynn Law Office.
Please remember that the information provided in this page is not legal advice. Its purpose is only to provide general information. The facts of each case are different, so any questions should be directed to a lawyer.