5 Third Street East
Cornwall, ON K6H 2C6
Phone: (613) 937-3883
Fax: (613) 937-3889
Before you say "I do", occasionally you and/or your partner may wish to have your verbal agreements made into a legal contract. A pre-nuptial agreement is a written contract setting out the terms of possession of assets, treatment of future earnings, control of the property of each, and potential division if the marriage is later dissolved. If you and/or your partner have substantial assets, children from a previous marriage, potential large inheritances, high incomes, or past a experience which may make you uncomfortable or nervous; this is a good solution so you will have fewer material concerns to distract you in your new marriage.
Separation Agreements You and your spouse have "broken up". Okay, now what? The first step is to settle any alimony (money paid for spousal support), child support, custody arrangements if there are children, payment of bills, and management of separate bank accounts. A separation agreement between you and your spouse, who have agreed to live apart for an unspecified period of time, will put on paper the answers to your immediate and perhaps some of the most difficult questions involved in your separation. A separation agreement may determine division of property if the separation appears permanent. It cannot be enforced by court order unless one party files a petition for legal separation or files a lawsuit for specific performance of a contract. If you and your spouse reconcile, the separation agreement can be cancelled; if not, it is an interim agreement to serve between the time of separation and eventual divorce if that is your intention.Legal SeparationIf you and your spouse have separated, you are not bound to automatically get a divorce. For whatever personal reasons you or your spouse may have, i.e. religious, perception, children, hope to reconcile in the future, etc. Legal separation may be the solution you require before making that final step. To become legally separated is a court-decreed right to live apart, with the rights and obligations of divorced persons, but you and your spouse will still be legally married and unable to remarry. A spouse may petition for a legal separation usually on the same basis as a divorce, and include requests for child custody, alimony, child support and division of property.DivorceThe final step in the process; termination of the marriage by legal action, which is an order by the court that the marriage is legally at an end. The substantive issues in divorces are division of property, child custody and support, alimony (spousal support), child visitation and attorney's fees. Grounds for divorce can include a separation period of one year, your spouse having committed an adulterous act, or your spouse having been physically or mentally cruel to you during the course of your marriage. Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce. However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.AnnulmentsIf you have just gotten married, something can come up to bring the validity of that marriage into question. In such cases, an annulment may be required to legally declare the marriage as non-valid in order to release you from the legal state of being married. For example, a marriage might be invalid if one spouse was already married when he or she married the other, if one of the spouses was under the age of 16 at the time of the marriage, or if a spouse married someone other than the person he or she intended to marry. If the court finds that the marriage is invalid it will make a declaration that the marriage is void as if it had never happened, and no divorce is necessary.Spousal Support (Alimony)During and after separation and/or divorce, you may be entitled to some support paid by your ex-spouse, or be obligated to pay it to your ex-spouse. It is usually paid to one spouse by the other party who earns a higher income. The criteria for making such an order are the length of time the spouses cohabited, the functions performed by each spouse during cohabitation and any order, agreement or arrangement. Payment is usually limited in time based on the number of years of marriage. Lengthy marriages may result in a lifetime of payments. A substantial change in circumstance, such as illness, retirement, or loss of income, can be grounds for the court to grant a modification or termination of the payment. Failure to pay ordered alimony can result in contempt of court citations and even jail time. The level of support can be determined by written agreement and submitted to the court for a stipulated order. Income tax-wise, payments are deductible as an expense for the payer and charged as income to the recipient.Child SupportYou and your now-separated partner have one or more children together. Now what? The primary caregiver for the child is entitled to support from the other parent in order to help raise the child or children. This is determined using the Child Support Guidelines. The Guidelines specify a certain amount of support, depending on the paying parent’s income and the number of children support is being paid for. You can find the Child Support Guidelines on the federal Department of Justice website at www.canada.justice.gc.ca. Select “Programs and Initiatives” and then the “Child Support” link.Order of ProtectionSomething happened. You're scared and need to protect yourself from someone who may cause you harm. An order of protection, also known as a restraining order, is a command of the court issued upon the filing of an application for an injunction, prohibiting the defendant from performing a threatened act until a hearing on the application can be held. A restraining order is an official command issued by a court to refrain from certain activity. Restraining orders are used in a wide variety of instances for the same reason: the plaintiff wishes to prevent the defendant from doing something that he or she has threatened. Restraining orders are used in a variety of contexts, including employment disputes, copyright infringement, and cases of harassment, domestic abuse, and stalking. All restraining orders begin with an application to the court, which decides the merits of the request by using a traditional test. Limited in their duration and effect, restraining orders are distinguished from the more lasting form of court intervention called an injunction. Generally they are sought as a form of immediate relief while a plaintiff pursues a permanent injunction.MediationIf you have a dispute issue which you just cannot solve alone, a good solution is to obtain the help of a third party objective mediator to help settle the issue quickly and fairly. Mediation differs from arbitration, in which the third party (arbitrator) acts much like a judge in an out-of-court, less formal setting but does not actively participate in the discussion. It is a less costly and faster option compared to taking a case to court, and is often ordered by judges in the case of domestic relations disputes (divorce, child custody, visitation). Mediation also has become more frequent in contract and civil damage cases.WillsEvery person should have a legal will. It is the only way to have your say after death. A will is the legal instrument that permits a person, the testator, to make decisions on how your estate will be managed and distributed after your death. If you do not leave a will, or the will is declared invalid, you will have died intestate, resulting in the court distribution of your estate according to the laws of the province in which you resided. Because of the importance of a will, the law requires it to have certain elements to be valid. Apart from these elements, a will may be ruled invalid if the testator made the will as the result of undue influence, fraud, or mistake. A will serves a variety of important purposes. It enables you to select your heirs, decide who will be the executer of your estate, and to distribute your property fairly to your beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator. A will safeguards your right to select your choice of guardian to raise your young children in the event of your death.