Separation Agreements
What is a separation agreement?
Separation agreements are legally binding contracts that resolve all of the legal issues arising out of a couple separating.
Do I need a separation agreement?
Yes. Even if you have no children and there is no property to divide, it is a good idea to get one, just to ensure finality between you and your spouse so that your spouse cannot raise legal issues later on.
What is in a separation agreement?
Separation Agreements deal with the major issues arising out of a separation – namely, child custody and access, child support, spousal support, and the division of property. They also deal with many ancillary issue you might not have thought about, such as insurance, future changes in financial circumstances or with the children, and dealing with future disputes between you and your current spouse.
Do I need a lawyer for a separation agreement?
Yes. There are many ways to reduce the cost of a lawyer in the divorce process, but drafting your own separation agreement is not one of them. Separation Agreements are quite a complex contracts that requires very precise wording and attention to detail for them to be held up in court. For instance, if you simply say something like “No spousal support is payable by either spouse†a court will not enforce this. To waive spousal support, you will need many complex clauses that can run for pages.
Another reason getting lawyers involved in a separation agreement is important is because of Independent Legal Advice.
What is Independent Legal Advice?
Independent legal advice means that a lawyer has taken the time to find out about the details of your situation, advised you of the law and how it is applied to the specifics of your situation, and explained to you what is in your separation agreement and ensured that you understand it.
Independent Legal Advice is NOT required for separation agreements to be valid. However, it helps ensure that separation agreements do not get attacked in the future. You don’t want your spouse going to court several years from now and asking the court to throw out your separation agreement because they claim they did not understand what they were signing. Independent Legal Advice helps protect against this sort of thing happening.
Do I need a separation agreement before my divorce?
Normally, yes, the court wants to make sure all of the legal issue are resolved prior to granting a divorce. It may be possible to separate the divorce from the remaining issues, but that is a complex procedure if your spouse does not agree to it.