Do you need a separation agreement before a divorce? A closer look

If you are in the process of navigating through a divorce, you may have had friends or family members tell you that you need to get a separation agreement with your ex- partner. But if your separation is amicable, you may be wondering whether this is really necessary. There is no legal requirement to get a separation agreement in Ontario in order to get divorced. There are however numerous circumstances in which it is strongly recommended. Here is what you need to know.

Why get a separation agreement?

A separation agreement is a legal document which outlines the division and attribution of assets to parties when they separate. This allows both people in the former relationship to have a level of control over what will happen to their assets. The agreement helps to ensure that there are no misunderstandings, and it can help the divorce process to go smoothly. Even the most amicable of divorces can turn ugly when it comes to dividing assets, but a well drafted separation agreement can help you to avoid a lot of conflict.

Child support

A separation agreement is especially recommended if there are minor children from the relationship. In fact, a judge will not grant the Divorce Order until acceptable arrangements for child support have been made. This is one of the issues that can be addressed through the separation agreement.

Selling the matrimonial home

Another scenario where a separation agreement is highly recommended is if you will be selling the matrimonial home. While it is not a legal requirement to get a divorce, there is a good chance that your real estate lawyer will require one – and they will require it to include a specific clause that outlines how the proceeds of the sale will be divided.

If the matrimonial home is sold without a separation agreement in place, then your Real Estate Lawyer will likely hold the proceeds in trust until there is a formal agreement or court order about how the proceeds are to be divided between you and your ex- partner.

Title transfer of the matrimonial home

Just like it is not a legal requirement to have a separation agreement to sell the matrimonial home, neither is it a legal requirement for the title transfer of the matrimonial home. But it is highly recommended.

Usually, your real estate lawyer will require that you have a separation agreement in place at the time of the transfer. This will let your lawyer know how the proceeds from the sale are to be divided.

Do you need a separation agreement to get a new mortgage?

For this scenario, the answer is yes. Almost all lenders will want to see a separation agreement before they approve you for a home loan. Lenders will want to see what assets are remaining with you when the divorce is final. They will also require details on any support payments that you will be receiving or making as these may affect your ability to make your mortgage payments.

Contact Minhas Lawyers today

While you do not strictly need to have a separation agreement in place in order to obtain a divorce in Ontario, there are many reasons why it is highly recommended. If you are going through a divorce, having an experienced family lawyer can help you navigate the process. Contact us today to book a consultation with a family lawyer to discuss a separation agreement.

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