Actually taking the split plunge may mean that you've got a whole lot more on your mind than legal issues. Things like how to pay the rent. Or feed your children. But right up there on the greatest hits list need to be a few legal must dos that should be taken care of immediately after the split.
1. SEPARATE YOUR DEBT
While separating your all debt from your spouse is often not so simple to accomplish, you should nonetheless take immediate steps to separate all the debt you can. Otherwise, you risk being saddled with post-separation debt accumulation by your spouse that, while theoretically speaking in a family court context sometimes might not be your problem, practically you are stuck with because you signed payment agreements with banks and credit card companies putting you on the hook. Separating credit cards, lines of card, mortgages, and periodic payment subscriptions are the top priorities.
So for any credit card with a zero balance that is in your name, consider cancelling the card. That way secondary card holders will also be cancelled, and you won't have to worry about who has access to your card number. Where a credit card is carrying a balance, try to find some way to pay it off (like with another loan). If you can't pay it off, consider at least cancelling all secondary card holders if you are the primary card holder.
Don't take excuses from the credit card companies that it can't be done. There will almost always be a primary and secondary card holder. Primary card holders should be able to cancel and entire account, and secondary card holders should be able to relinquish their cards.
If the card issuer gives you hassles about cancelling a card, write a firm letter disavowing all further responsibility for expenses you don't personally incur. It won't be a magic bullet, but it may offer some protection. Even if you've only got a secondary card, you should still get rid of it to better disentangle your finances.
Separating mortgage debt would also be nice, but might not happen until a house is sold. However, if you have a line of credit that is secured to your house and is not maxed out, make sure you write to the issuer of that line that you disavow future advances made solely by your spouse, and that you want it frozen at its current level. This likewise might not always work, but it will again provide at least some protection.
2. SEPARATE YOUR ASSETS
Your joint banks accounts held with your spouse may be where employment or other income is regularly deposited. Immediately open new accounts in your name only, preferably at a different financial institution so that no one can later claim confusion about who had authority over your accounts. As it may take a bit of time to have your payments start being deposited at the new institution, it's imperative that you act on this quickly.
Usually automobiles or other movable property will only be registered in one of your names, so transfer to the other spouse will need to await final settlement. But real estate will often be registered in both names. If so, you may again have to await a final settlement to have it transferred into or out of your name. But be aware that an Application for Partition and Sale can be brought in Ontario outside of the context of the Divorce Act, so that if a comprehensive family law separation agreement (or court proceeding family law trial) is proving elusive, you aren't stuck with real estate hanging in limbo for years. You can bring a relatively straight forward "application" (as opposed to a more complex "action") to sell the property, and just because you are a co-owner doesn't mean you can't bid on the property,
3. SECURE ARRANGEMENTS FOR YOUR CHILDREN
Other than debts and assets, children are usually the most immediate issue to deal with after a split. They will range from not contentious at all to a truly toxic issue of high conflict potentially engaging repeated police involvement.
Taking the initiative to propose interim child care measures to your spouse is likely the best policy to deescalate conflict. While this might seem an obvious move, my experience as a family lawyer tells me that often these conversations are very difficult to engage in immediately post-separation, but you could at least explain what you are proposing as child care arrangements by email or letter even if you aren't on direct speaking terms with your spouse.
I get that the instinct or reality may be to flee with your children for your own or their protection. There could be situations justifying that. But because "shared custody" is now considered to be the norm for best interests of the child, you'll need solid evidence to justify such action.
Otherwise, at best you might be accused of contempt of court, and at worse of the offence of child abduction. As painful as it might be, just because your spouse has been violent in the relationship to you does not necessarily mean that a risk to the children will be presumed - although Children's Aid Society (CAS) and Office of the Children's Lawyer (OCL) involvement (using the Ontario terms) might be in order.
The spectrum of interim child custody arrangements include:
- shared custody where each party has at most a 60-40 split of time with the children, leading to no child support being payable, but special and extraordinary expenses (like the dentist or soccer camp) being split according to relative incomes of the parents;
- one parent having sole custody, with the other parent have regular "access," where the access parent will be required to pay child support on an interim basis according to the "table" amount based on income;
- one party have no or limited supervised access to the children - where there are serious concerns about threats to the children's wellbeing, including psychological wellbeing through parental alienation.
There are lots of variations to these arrangements, but these three categories represent the fundamentals. Be aware that the first option of shared custody will be the norm, unless both parents consent, or get a court order. The caselaw is very consistent that maximum contact with both parents is in a child's best interests, absent exception circumstances.
4. SECURE A MEANS OF SUPPORT FOR YOU & THE CHILDREN
Regardless of how many things you might simultaneously need to be dealing with after a split, feeding yourself and your children really need to be at the top of the list. Where both parents have relatively high and relatively equal incomes, this might not be such a top priority as arrears in child support by a non-custodial parent can often be dealt with later in final terms of settlement (like through one party giving more or fewer equalization assets to compensate for a lack of earlier owing support).
But when you can't pay the rent, securing a means of support needs to be the top priority. If you're the spouse who sacrificed a career to stay home with the children, you're going to need interim spousal support, even if you share custody to such a degree that neither of you pays child support. Unfortunately spousal support has turned into the battleground that child support used to be until the child support table guidelines turned the calculation of child support into much more of a mathematical than legal exercise.
Sorting out these top four legal things to deal with immediately upon separating from your spouse may not require going to court, but they should involve a lawyer. In Ontario, Legal Aid Ontario runs Family Law Information Centres (FLIC) to help those who financially qualify, and also provides private lawyer certificates to family law counsel to help you; I'd say at least half of Ontario family lawyers take these certificates (we certainly do), though sometimes services may be more limited than those available to "cash" clients (for instance, legal aid usually won't fund travel, so we're more limited in the geography within which we can operate).
And even for those who need to pay for lawyers themselves, I always say that legal "advice" can be great value in preventative medicine. It's the going to court that can get costly, and thus you should do whatever you can to avoid that court journey if at all possible (including paying a lawyer for advice and negotiation services).
There's lots of mythology around family law. Don't become lost in the Maze of Minos.
Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com.