How do you prove you've been living apart for separation/divorce?

April 14, 2010 1:14 PM

How do you prove you've been living apart for separation/divorce?

I'm in a marriage that has been sexually and emotionally abusive. I'm at a point where my PTSD is stable enough for me to consider separation. I'm meeting with a legal aid clinic next week. The women's crisis centre suggested I ask the lawyer how to prove we've already been separated without necessarily having to have lived apart. I don't want to spend much time on that question, as I already have several more pertinent questions and I only get 30 minutes.

FYI, my husband and I have not shared our bedroom at all for five months. I became so fearful of him that I made him sleep on the sofa. We have not been intimate at all in that time. I only join him in taking care of the kids and household. We have not generally spent time together as a couple. In the 3 months prior to that, we slept in separate rooms much of the time and things were very strained - we barely spent any time together during that time, which is when I started unpacking the trauma in therapy.

I'm not entirely sure why the women's centre wanted me to be able to prove that we'd been separated already, since, honestly, right now, I just want to look at separation and would probably be okay with being separated for a very long time, without speeding up any divorce. Perhaps they are just concerned about safety planning. If, for some reason, I wanted a faster divorce, I would think I could just prove the assaults, since I made him report them to his doctor and a counsellor and I have my own paper trail.se

This is in Canada, but I'm sure there are some commonalities.

posted by anonymous to Law & Government (12 answers total)

In my Canadian divorce, my lawyer just asked if we were living apart and for how long; I don't recall having to prove anything. I might have brought in a copy of the lease for my new, solo place. She asked for both our addresses, but when I didn't know his it didn't seem to be an issue.

At a guess, they don't need proof unless it is being contested.
posted by Billegible at 1:18 PM on April 14, 2010

If you separated your finances and opened a new bank account, that would count as proof of separation too.
posted by kate blank at 1:23 PM on April 14, 2010

In Ontario, my friend merely told the lawyer the date of a large fight (he moved out six months later, returned a month later and finally left when the house was sold several months later). Both lawyers and the court accepted that date as the legal date of seperation and child support and spousal support were retro to that date. In Ontario legal seperation does not always mean physical seperation. You may want to look at Ottawa Divorce Forum (not specific to Ottawa but most member's experiences are with Ontario Family Law).
posted by saucysault at 1:26 PM on April 14, 2010

And if you are in Ontario or another province with similar laws, they are probably suggesting the stating the real date of emotional/legal seperation so you can get all the CS and SS you are entitled to.

You can book consultations (usually the first 30 mins are free) with as many lawyers as you need to find one that clicks with your style. If you are entitled to significant money from the seperation (support, assets and equity in the house) it may be worth your time to pay for a lawyer (many hold the bill till you have money to pay) instead of legal aide.
posted by saucysault at 1:32 PM on April 14, 2010

I am in the US, and I testified at a sibling's hearing that they hadn't been living together.
posted by frecklefaerie at 2:01 PM on April 14, 2010

Agreed that if the divorce is not contested evidence may not be necessary. Likely if it is, you can swear an affidavit attesting that you were living "separate and apart" under one roof. This is a fairly common situation, IME. Statements from acquaintances may be another way but the lawyer will tell you if this is necessary.

IANYL. TINLA. Family law is complicated; you really should get this advice from a lawyer.

Good luck.
posted by AV at 2:13 PM on April 14, 2010

I'm in the US and I testified at a co-worker/friend's divorce hearing that she and her husband had been separated for one year. It was very simple though and her ex didn't even bother to show up to the final hearing.
posted by chiababe at 2:28 PM on April 14, 2010

I wouldn't worry about it too much. The reasoning behind the year of separation has nothing to do with back-dating support payments, and everything to do with the government wanting to ensure you won't reconcile before they grant the legal divorce. If your spouse has no reason to argue you were still together, the date you provide may be sufficient. Ask your lawyer at the meeting but don't stress too much about it beforehand.
posted by Pomo at 3:00 PM on April 14, 2010

I think the problem here may be that you aren't living apart; you've just been spending your waking (and sleeping) hours apart. You still live together.
posted by InsanePenguin at 3:17 PM on April 14, 2010

I think the problem here may be that you aren't living apart; you've just been spending your waking (and sleeping) hours apart. You still live together.

This is likely incorrect, and why you, OP, need to talk to a lawyer! It is possible under Canadian law to be considered living "separate and apart" within the meaning of the Divorce Act even though the parties are in the same house/apartment/etc.

I suspect the reason you were asked this is because the timing of, and how long, the parties have lived separate and apart will have bearing on whether "marriage breakdown" has been established for purposes of divorce. However this is just a guess and NOT legal advice.

Again, IANYL. Talk to a lawyer!
posted by AV at 3:33 PM on April 14, 2010

Talk to a lawyer, as separation can include "alienation of affection", which means that although you were living together, there was no "marriage bed". Depending on the state and overall situation, this may be difficult to prove.
posted by kellyblah at 5:02 PM on April 14, 2010

Shows how much I know about divorce law.

Good luck, though!
posted by InsanePenguin at 5:46 PM on April 14, 2010