If you and your spouse want to get a separation agreement written, that is up to the two of you. It can be helpful to have a separation agreement so that you both know what is expected of you once you’re separated. Divorces can take time, and having a separation agreement can provide guidance to both of you on issues like parenting arrangements, and money and property issues, in the meantime. You may also be able to use the terms in your separation agreement to finalize your divorce. It may make the divorce process easier, if you’ve already agreed upon all the issues. Again, though, you are not required to get a separation agreement.
If you and your spouse decide to get a separation agreement, it is best that you go to lawyers to have this done. Family law lawyers can tell you what kinds of things should be included in your separation agreement, and can prepare the separation agreement. The court does not prepare separation agreements.
NOTE: Be careful about using online companies or store-bought ‘kits’ to prepare your separation agreement. These companies and kits are not regulated, and there is no guarantee that they are using the right forms or completing them in the right way. The same caution applies to divorce forms. Every jurisdiction uses different forms. In Nova Scotia alone there are three different ways to file for divorce, and two different courts that deal with divorce depending on where you live – the Supreme Court and the Supreme Court Family Division. This means there are six different sets of divorce forms in Nova Scotia alone. It is not likely that a generic kit will give you the information, forms, and instruction you need.
If you have a written separation agreement, you can apply to the court to have your separation agreement registered, but this is not required. Asking to have your separation agreement registered means that you are asking the court to make your separation agreement into a court order. If you apply to do this, the agreement will go to a judge for final approval. The agreement must meet certain requirements.
You will have to submit an original of your separation agreement (signed by both you and your spouse, with witness signatures), along with other documents. You can only apply to register a separation agreement in the Family Court or Supreme Court Family Division.
Applying to the court to have your agreement registered does not automatically mean that it will be registered – this is up to the judge.
Just because you and your spouse agree to a particular child support arrangement, doesn’t mean the court has to agree with it. The court needs to confirm that any child support arrangements in your agreement follow the Federal Child Support Guidelines. These Guidelines are the rules that determine the amount of child support to be paid. If the judge isn’t satisfied that your arrangements meet the Guidelines, your separation agreement may not be approved for registration with the court.
If you have children, at least one spouse, or sometimes both spouses, will have to provide your financial information to the court. This includes situations where both parents have agreed that an amount other than the Guidelines amount of support will be paid because there is a shared or split custody arrangement, or for any other reason.
If the judge approves, your separation agreement will become a court order. If you later want to change the agreement, you will have to file a court application. Filing an amended separation agreement will not work, but if you and your spouse agree on the change, you may be able to file a consent variation order. If your separation agreement is registered with the court, any child or spousal support amounts in the agreement can be enforced through the Maintenance Enforcement Program.
For more information about separation for married spouses, click here.