The Best Separation Agreement: more about Process than Product
As family, separation, and divorce lawyers, working with clients on the breakdown of a relationship is what we do. This is one of the biggest events in most people’s life; right up there with death and taxes.
The process part is surprisingly the most essential to all of this. No matter how luring it may be to think that you can just download a fill in the blank agreement, you can’t. Just like organic food, it’s not the apple that is organic but the entire process: it is the seed, soil, nutrients, harvest, handling and delivery that has it travel to your plate.
Likewise, a Separation Agreement is not just words and paper or an electronic product that puts the appropriate checks in the boxes. Here we will go over the nuts and bolts considerations but also give an explanation of the process that will set you up for an independent future.
NUTS AND BOLTS
Separation Agreements are similar to all agreements between two people in an intimate relationship, be it marriage, cohabitation or even wills. However, they are far different than all other contracts you might enter into. Here is what is typically required:
- The agreement must be in writing
- The agreement must identify the parties and their rights and obligations
- The agreement must be lawful. This means that it cannot provide rights or oblige another to do something against the law and may at times have to conform with various legislation. For instance, you cannot skip child support if there is a child of the relationship.
- Each party to the agreement must have the ability to enter into the agreement and do so freely. Most of the time they must be an adult but a child who is a parent or a spouse may also enter into a binding agreement.
- Each party must sign the agreement in front of a witness
- Each party must make full financial disclosure.
THE PROCESS EXPLAINED
All professionals who deal with family breakdown, separation, divorce and matrimonial discord understand that there are complex realities and personal circumstances behind every relationship coming to an end. This is where the process comes into play. The process is often the part that is put under a microscope when looking backward to see if it was fair. Unless you fairly negotiated, shared information, had proper understanding on your side and can demonstrate that those items took place; you may be in trouble.
Now the reason that people have a contract or Separation Agreement is to ensure that their agreement is enforceable, fair and valid. Alternatives to a formal Separation Agreement include minutes of settlement, consent orders or orders after trial are almost always more costly than a Separation Agreement which will cost an average of $2,500 to $10,000.
Compare that to going to court to resolve family issues or having a bad agreement set aside and you will each be looking at $5,000 to over $100,000 in legal fees.
Essentially, a Separation Agreement and its terms should become intertwined with your respective lives and, if done correctly, neither party will need to change it. In appropriate circumstances, a review clause can be incorporated in various topic areas. This sounds tough, right? We all change, seemingly all the time. So how does one agreement accommodate all those changes?
This is where we will work with you to ensure that you understand what is in a Separation Agreement. You will know specifically what is meant by each term and what rights and obligations are being provided to you. Equally and often overlooked at first are the rights and obligations that you may be giving away with the Separation Agreement and without careful planning, they may be lost forever. This is an essential point, since, unless you have contemplated a particular possibility, other lawyers could and will argue that it was not considered and so should be a reason to set the agreement aside.
The typical reasons a court will set aside a Separation Agreement are:
- Lack of full, complete and honest financial disclosure it is really not adequate to simply state you know or are aware of the other’s finances. Evidence, usually a sworn financial statement, will need to be demonstrated otherwise the agreement may easily be set aside, and this is even more clear now that the Family Law Act makes full disclosure a law at section 5.
- Duress, coercion, and unconscionability these can be interpreted in a variety of ways but you have to remember that the court understands that parties potentially have emotions and other factors that can amount to unfair force being exerted against a person who enters a contract. One example would include someone not having sufficient time to consider the agreement because some event was imminent, such a factor has on many occasions led to agreements being set aside.
- Failure to obtain independent legal advice people are often surprised at this but given the many necessary considerations even well intention and amicable separating parties may be faced with an agreement being thrown out because one or both of the parties did not consult a lawyer and as such were not aware of what rights and obligations they were losing by entering into a Separation Agreement.
As a lawyer who focuses on the diverse needs of family members at a specific point in their lives, I feel privileged to add value and understanding at this difficult time. We are often able to add significant value to these discussions and typically this can come in actual savings of taxes, and legal fees. We are confident in employing our services and aim to do this in a way that brings you the most timely and cost-effective results. In family matters, we often employ various techniques which include a multitude of dispute resolution mechanisms and always employ a strategy to advocate for you.