What is Separation Agreement?
A Separation Agreement is a legally binding contract created between you and your spouse or common law partner to outline the terms of your separation. This contract outlines each of the party’s rights and obligations on issues such as: child custody/access, child/spousal support and property.
What is included in a Separation Agreement?
A Separation Agreement generally includes details regarding how issues are to be resolved after your separation. For Example:
- Where will the children reside?
- How will important decisions be made?
- Where will the children spend their holidays?
- What happens if a parent wishes to relocate?
- Who will pay, how much and for how long?
- What is a Special and extraordinary expense and how does it get paid?
- When will child support end?
- Will spousal support be paid from one party to another? If so, how much and for how long?
- Will there be a review of spousal support? In what situations?
Medical and Dental Benefits
- Will one or both parents maintain benefits for the children or for the other party?
- Do the parties have enough life insurance to cover their child and spousal support obligations in the event of their death?
Division of Property
- How will assets and liabilities be divided?
- Assets – Matrimonial home, investments, business assets
- Liabilities – Mortgage, line of credit, credit card etc.
- How will the equalization payment be paid?
- Will one party buy the other party out of the matrimonial home or will the home be sold?
- Will one party reside in the matrimonial home until the home is sold? How will the bills be paid?
- Will the pension be equalized or divided?
Provisions for Future Changes
- A carefully drafted Separation Agreement will also establish basic guidelines and protocols for any future changes you may wish to make.
Why do I need a Separation Agreement?
1. It is important to have a Separation Agreement to prevent unresolved and often unexpected issues in the future. Without a legal document, you could be exposed to ongoing anxiety, uncertainty, conflict and resentment.
2. *The court may not grant a divorce before the terms of your separation have been decided. For example, if you have children, a court will not grant a divorce until you have shown that you have made adequate child support arrangements.
3. You will likely be required to provide a copy of your Separation Agreement to your financial institution when you apply for a mortgage on a home. These documents will be reviewed for child support and/or spousal support requirements and as proof of your net worth and income.
*Having a Separation Agreement does not mean you are Divorced. You must apply to the court to become divorced.
Can my Spouse and I create our own Separation Agreement?
Separation Agreements are regulated under Part IV of the Family Law Act. This section of the Family Law Act allows parties to create their own agreements outside of the court system. However, creating your own agreement is not recommended. A detailed Separation Agreement will include many important factors that you may not be aware of. An Agreement may not be upheld in court if it is not a comprehensive document and does not include full financial disclosure, is unfair or a party has been pressured to sign. Family law is complex and without having a clear understanding of the content required in an Agreement, there are likely issues that you have not clearly defined in your document. If you have created your own agreement, it may mean continued negotiations and amendments to accommodate future issues.
How do I get a Separation Agreement?
1. Traditionally, in Ontario, Separation Agreements are created my Family Law Lawyers. Each party retains the services of their own lawyer and the primary negotiating of terms for the agreement are done between the lawyers. Each lawyer advocates for the best possible outcome for their client so there are challenges to getting issues resolved. It can be a long and expensive process. You start the process not knowing your costs until the process is complete. If issues cannot be resolved between the lawyers, then typically your case will be heard in court. This further extends the time and cost to you. Using lawyers can be very adversarial, and often causes irrefutable harm to the an already fragile relationship you may have with your spouse. When you finally agree to terms (or have a judge decide the terms on your behalf) a Separation Agreement is drafted.
2. Before you go to your lawyer, you can use the services of a family mediator. An accredited Family Mediator will assist you and your spouse to come to an agreement. Typically, at the end of your mediation session, mediators provide you with a “Memorandum of Understanding” (MOU) that provides the basis of your separation agreement. This document is taken to a lawyer who then creates a Separation Agreement based on your MOU. Having your negotiations done through a mediator, is a far less expensive and less stressful experience than having lawyers negotiate issues on your behalf.
3. At Positive Solutions Divorce Services® we have a third option that is unique. We create Separation Agreements through mediation. We help you avoid unnecessary legal fees and work with you and your spouse to create a fair and legal document that is in the best interest for you and your family. We are not lawyers and we cannot give you legal advice. Before signing Separation Agreement, we recommend you take it to a lawyer for Independent Legal Advice. (ILA)
It pays off to invest the time and energy to create a complete and clear Separation Agreement. If children are involved, having the agreement will give you the basis to help you make decisions going forward. On the other hand, a badly written or incomplete agreement may not stand up in court and my cause continued battles with your former spouse.