How to Create a Separation Agreement and Save the Headaches

Deciding to end a marriage is never easy. In addition to the emotional impact of separating, you and your spouse face a lot of important decisions about property, finances and the care of your children. Sometimes former spouses think they’ve agreed on these issues only to have one spouse change his or her mind. The issue can become a battle and, if it lands in court to decide, could cost a lot of money and time.

How can you avoid this?

Consider the benefits of a separation agreement. This is a legally-binding document that lays out the rights and obligations for both spouses regarding custody, access, child and/or spousal support and property division in divorce. A separation agreement gives you written proof you and your former agreed on an issue. This makes it harder for one spouse to claim differently later.

Rules for Creating a Separation Agreement

In order for a separation agreement to be legal and enforceable for both former spouses, there are a few rules to follow when creating the agreement. Both of you must:

• Fully disclose all financial information (assets and income),
• Understand the terms of the agreement,
• Allow the process to be fair.

In addition, the two of you must sign the document in the presence of a witness. It’s not necessary to file the separation agreement with the family court. But if you do file a copy, the court can make a former spouse pay support if he or she stops payment. A new agreement can be drawn up if you and your former spouse change your minds about an issue, but you both must agree.

What to Include in a Separation Agreement

Think of the separation agreement as defining the parameters for your lives following divorce. If you have children, you can decide custody, access and support arrangements. You can outline how you agree to divide your assets, including what assets are exempt. You can state what will happen to the matrimonial home and what, if any, spousal support will be paid and for how long. Decisions about whatever debt you have can also be included in the agreement.

For example, a couple with two preschool age children might decide the father will pay spousal support until the youngest child is in school full-time so the mother can be home with the kids. Or a couple could decide to sell their boat and split the proceeds rather than have one assume ownership and the loan.

While it is possible to write a separation agreement without seeking professional legal advice, it’s recommended that you consult a lawyer before you sign. A family law expert can review the agreement to ensure the proper terms or language are used and that your rights have been protected. A valid separation agreement is an investment in your future and you don’t want it declared void because of a mistake made in drafting it.

What Happens if We Don’t Agree?

The court encourages former spouses to reach agreement about their separation and divorce. The alternative—asking the court to resolve issues—can take a long time and cost a lot of money. But if you and your former spouse find it difficult to agree on your own, there is help.

Each of you can hire a lawyer who specializes in family law. Your lawyer can help you understand your rights and obligations, and act as your representative in negotiations. Many former spouses find it easier to agree when not talking directly with each other. Emotions can be lower and the lawyers can keep discussions focused on resolution.

A mediator—a social worker, psychologist, lawyer or other professional trained in family law—may also be an option. A mediator will meet with both of you to discuss the issues and help you arrive at decisions that are equitable and fair. The focus of a mediator is not establishing blame or past behavior. The goal is to reach a resolution.

Get Professional Legal Advice

If your marriage is ending, having a separation agreement can help make your separation fair and equitable. Get the support and expert advice of a legal professional specializing in family law who can help protect your rights.

Galbraith Family Law lawyers are trained in Collaborative Practice, and we have been named the top firm by the Barrie Examiner multiple times. Our legal insights have also been featured in the Globe and Mail, as well as Lawyers Weekly.

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