Can You Backdate a Separation Date?
The emotional turmoil is subsiding, the logistical decisions are starting to form. First question on your mind is:
What do we use for our separation date?
And then subsequent questions arise…
Do we go by the date that we had that big fight or the day he moved down to the basement?
Do we need to wait until one of us moves out of the house?
But does that mean that I lose my piece of the house?
Wait..but then if we do decide on a date, do we need to have a separation agreement drafted?
Keep reading to get all your separation date questions answered and some more.
Separation occurs when you stop living as husband and wife, spouse and spouse, or Adult interdependent Partners.
It’s not just about sharing a bed. You stop sharing meals, stop being co-engaged in social events, and separate your financials to a certain extent. In essence, you start leading separate lives. If you’re living in the same house, it’s almost impossible to be entirely independent of one another, so don’t feel that you need to construct complete independence just yet.
IT’S HONESTLY SO SIMPLE;
If you both agree on a date- you can simply go with that date. Period. (and don’t worry, the Alberta courts will not ask for proof of separation- not even a Separation Agreement).
If you do not agree on a date, then this will create a series of issues, as in certain cases, the separation date affects spousal support start date and duration, the division of property calculations, as well as when you can file for divorce.
DIVORCE….WHAT IS THE DIFFERENCE BETWEEN SEPARATION AND DIVORCE?
Common question! And a little difficult to answer because they’re actually very different, but I will do my best to explain them to you. Here I go!
A Divorce is filed in court. A Separation isn’t.
You can initiate the divorce but you cannot finalize it until the one year has passed since your separation date (this is if you’re going by “living separate and apart for at least one year” as your ground for divorce. )
You do not have to wait until you file for divorce to deal with things like parenting, child support, or the division of property. You can deal with them during that separation period. If you have children, think of your separation and divorce as 3 pillars:
- Parenting and child support
- Division of Family Property (splitting your assets and liabilities)
- The actual Divorce (a series of documents filed in court for the purpose of dissolving your marriage)
If you do not have children, or you have adult children, think of it as 2 pillars (2& 3). We, at TDS, help our clients de-construct these pillars in a meaningful and simplified way, book a Zero Risk Divorce Assessment to find out how.
You sometimes want to follow a separation date with a Separation Agreement but you don’t have to.
You can be separated for years before you file for divorce. Some people are ready and comfortable dealing with the pillars immediately after the separation, but hold off on the divorce. That is okay.
ALL THIS LEAVES ONE MORE QUESTION UNANSWERED. ARE YOU STILL WITH ME?
So….if separation date is simply a date my spouse and I can agree to, can we backdate it?
Shhhhh don’t say I said so, but yes ONLY AFTER you consult with a divorce professional to find out if and how the newly agreed upon date affects your entitlement to spousal support and the family property.
Oh, one more thing; please stop calling it a “Legal Separation”- There is no such thing in Canada.
There you have it! I think I’ve answered all the separation date questions I hear from my dear clients.
If I left anything unanswered, please reach out and I will do my best to fill you in!
The decision to separate from your partner is not an easy one. The un-coupling of your relationship comes with all sorts of uncomfortable, and bitter feelings. In addition to the emotions, you must deal with the logistics of separation, such as dividing your assets and liabilities, finding a new home, and negotiating a parenting plan if you share children.