Even when both parties agree, individuals should seek legal advice from a family lawyer.
If both parties can agree on how to settle the big issues during a divorce or separation, such as custody , child support, spousal support, and property division, they can draft a Separation Agreement. Sometimes agreements come to fruition after meetings with mediators or settlement meetings with lawyers.
No matter how couples find a way to agree, a lawyer should be involved in the drafting of suchan important document. One spouse can work with one lawyer to draft a Separation Agreement. After the initial document is drafted the other spouse should take it to another lawyer for independent legal advice. This process is the same for married and common law couples.
For a separation agreement document to be legally enforceable it must:
- be in writing
- have been entered into freely and without coercion
- show that each party received independent legal advice about the effects of signing the agreement
If the Separation Agreement includes arrangements concerning matrimonial property, it must also meet the formalities of the Matrimonial Property Act. There is much legislation andcase law specific to the disclosure requirements for the agreement to be valid. In addition, thereare specific clauses and requirements surrounding a Separation Agreement that protect youfrom future claims of property and spousal support.
Additional issues regarding the exchange of financial disclosure and the doctrine of unconscionability should be discussed with a family law lawyer prior to the drafting of a Separation Agreement.
An RCMV Family Lawyer can make sure you are venturing into your Separation Agreement with the right knowledge and resources. Contact us today.
Below we’ve compiled a few important answers to commonly asked questions on the Separation Agreement process.
- What Issues Are Addressed in a Separation Agreement?
- Why do we Require a Separation Agreement?
- When Would a Court Refuse to Recognize My Separation Agreement?
- How is a Separation Agreement Different Than a Divorce? Do I Need Both?
- Do We Need To Agree On Everything In Order To Get A Separation Agreement?
What Issues Are Addressed in a Separation Agreement?
A separation agreement addresses many important decisions including:
- date of separation
- child custody and guardianship
- parenting schedules
- child support
- spousal support
- division of pensions, RRSPs, etc.
- division of matrimonial property and debt or
- division of common law property;
Why do we Require a Separation Agreement?
If you and your spouse are able to agree on the major issues involved in your separation or divorce, then it is advisable to solidify your agreement through a separation agreement.
A legally binding separation agreement helps ensure that your spouse follows the terms of the agreements you have reached, and can help you avoid going to court to resolve your issues.
When Would a Court Refuse to Recognize My Separation Agreement?
Courts may refuse to enforce your separation agreement in the following situations:
- the terms of the agreement, such as the amount of child support, are not in the best interest of your children;
- a spouse has failed to disclose certain assets or liabilities; or
- the separation agreement is unconscionable, or grossly unfair.
Legal advice from an experienced family lawyer will bring any potential issues with your agreement to your attention before the agreement is signed.
How is a Separation Agreement Different Than a Divorce? Do I Need Both?
A Divorce Judgment is a court order that legally ends a marriage. In most cases, a Divorce Judgment is also required to include provisions for custody, parenting, child support, and spousal support.
If you and your spouse have already signed a legally binding separation agreement, then the court processes relating to a divorce are usually completed by consent of both parties, avoiding court appearances and uncertainty. A separation agreement is flexible because it can be signed at any time, while there are restrictions regarding the timing of divorce proceedings.
Do We Need To Agree On Everything In Order To Get A Separation Agreement?
Though it may be preferable from a cost perspective, it is not necessary to agree on all issues prior to entering into a separation agreement. Even if you and your spouse are only able to agree on one issue, it may be worthwhile to formalize your agreement in writing, with independent legal advice.