Separation Agreements

One of the first questions that comes to the minds of people that are recently separated is how to document any agreement between them and their former spouses on issue such as the division of property, care and time with children, child support and spousal support. Often referred to as separation agreements, these documents formalize the agreement reached between parties and the way in which they are drafted and the process followed in arriving at them can have significant impact on the chances of those agreements being signed and enforced by the courts if needs be.

While we often hear of the family law cases that go to court, far more cases resolve without ever reaching the courthouse steps. Most couples resolve disputes without court intervention, which then requires some other way to document the resolution other than a court order. This is where a separation agreement plays in.

Some people skip over the step that precedes separation agreements, the negotiation of the agreement. Nailing down the terms of what is agreed is a delicate process. Often we see people come in that think they have negotiated all the terms, yet the two parties have very different ideas on how long spousal support is to last, or when they are to be paid out their share of the property. There are opportunities and pitfalls in this negotiation process and obtaining the right legal and accounting advice before an agreement is reached is fundamental.

Many people do without a formal separation agreement whatsoever, which begs the question of why you would even want one. There are several reasons. If you are seeking financing to buy out your ex from the family home you will likely have trouble getting financing without a separation agreement. Often the banks require one witnessed by a lawyer. Also, if you want to be able to hold your ex to an agreement on the amount of money he or she owes you on account of property division or in spousal support or child support then you will want to get that in writing in a sufficiently clear manner.

Providing then that you wish to document any agreement reached, this leads to the question of whether you need a lawyer to draft a separation agreement. The truth is that many people obtain forms for this of the internet and avoid legal fees altogether. The problem with that is multifold. Firstly, such an agreement is likely to not be properly drafted and on a pure construction basis, may omit significant points that you had thought to be agreed. Retaining a lawyer to draft an agreement helps ensure that the drafting of the agreement is as comprehensive and competent as possible.

What many people fail to appreciate is that the enforceability of an agreement depends on more than just the drafting of the agreement. It depends on the process. The courts have dictated that generally full financial disclosure needs to be provided (disclosure of income, assets, debts and budgets) and the process needs to be free of threats, undue influence or one party taking advantage of vulnerabilities of the other. These are not idle notions. There are actions heard in court on a regular basis where one party seeks to overturn an agreement due to a failing on one of these as well as other grounds and in those cases the goal to avoid lawyers at the outset often comes back to bite those people in the end.

For most people a separation agreement covers the most significant financial transaction in your life. Whether it involves buying out your ex or being bought out of your family home or in agreeing to either waive spousal support or set the amount of duration, these amounts, over time in the case of child or spousal support, amount to a very significant sum of money that can have a big impact on your standard of living. Documenting the agreement and getting the appropriate amount of advice on it is fundamental.

It often surprises people that these agreements cannot simply be signed off by lawyers if they were not prepared by another lawyer. While not always the case, often this results from drafting deficiencies (if for example one term contradicts another or an issue was just omitted that should have been included).

It is also frequently a surprise to people to find that it takes some time and process for such an agreement to be drafted. If you do retain a lawyer to help negotiate and document your family law agreement you should speak about the time-lines and cost in advance. These vary from file to file, based on things like whether you are self-employed, own a business, or whether there are disputes about how much the other person’s income is for the purposes of support.

Used well, with a process and cost that is suitable for the file and proportionate to the issues and resources available, a separation agreement can provide the most ironclad resolution of your family law issues for the cheapest legal fees. To achieve that, it is critical that you navigate the process and obtain the advice you need while not allowing the matter to become inflamed and enter the court process if possible (which it is not always). Like most complex transactions in life, it is this balance that relatively few people achieve.

Michael Sinclair is a family law lawyer and estate lawyer at Doak Shirreff Lawyers LLP. Click here to connect with Michael. He can also be reached at [email protected] or 250-979-2521.