As this website clarifies, a separation agreement is not something that you apply for, nor is it something granted by the courts. The same is true for separations in Canada. You and your spouse are not required to have a separation agreement drafted, and neither of you are required to sign one. While these agreements may not be mandatory, they are strongly recommended.
What Is a Separation Agreement?
A separation agreement serves as a contract of sorts between two separating spouses, allowing them to settle disputes without the need to appear in court. Separation agreement lawyers help outline the roles and responsibilities of each spouse in regards to issues like:
- Child custody and child support
- Visitation arrangements and schedules
- Division of assets
- Division of debts
- Spousal support
Spouses may be in complete agreement with all of these major decisions from the start of their separation, but it is always wise to have them in writing for future reference. If you and your spouse are struggling to come to an agreement when drafting this document, you could use the assistance of a divorce lawyer and/or mediator. This will allow for a productive negotiation process to take place.
Trusting Verbal Agreements Can Be Very Risky
Right now, you and your spouse may be trying to end your marriage as quickly and as stress-free as possible. Therefore, you might verbally come to some agreements regarding things like child custody or who will receive which assets. However, things can change very quickly or people can conveniently forget what they agreed to do.
If your spouse does not honour your verbal agreement in the future, you are not likely going to have much luck trying to enforce a verbal contract or taking any type of legal action. While, if you had a valid separation agreement signed, most courts will recognize this as a legally binding contract.
In most cases, simply having the agreement created and signed is enough to keep you and your spouse out of the courts in the future. The idea that this contract exists and can be referenced in times of dispute is typically enough to get each spouse to live up to the agreed upon responsibilities.
By eliminating these legal disputes, you and your spouse can more easily move on with your life, avoid expensive court costs and reduce tension. Being able to resolve these issues easily and without conflict is especially important if you have children together.
The Importance of Using a Divorce Lawyer
Even if you and your spouse feel that you are satisfied with the terms of your separation agreement, it is always wise to have an experienced divorce lawyer draft the document with you, or review your agreement. One poorly worded sentence or any other small mistake could have major ramifications for you down the road.
You will want to ensure that both parties are represented fairly within your agreement, not only to be ethical, but also because the courts may consider your agreement to be invalid otherwise. Your divorce lawyer will carefully assess all of the terms within the agreement to determine whether or not each spouse is being represented accurately and justly.
You can also benefit greatly from the experience of divorce lawyers when drafting separation agreements. There may be important factors that you are forgetting to address within your document that your lawyer will be quick to point out. To avoid painful and/or expensive conflicts in the future, you will want to account for every detail now.
Canadian courts have ruled that a separation agreement without Independent Legal Advise may not be enforceable. Most times clients will spend more if they draft their own agreement and then have a lawyer modify it. The same is true when they use a paralegal service, as they then have to pay for Independent legal advise for both spouses.
You may also wish schedule a consultation with a member of our family law team to discuss your family law entitlements and obligations, please contact our experienced team at Kahane Law Office. You can reach us toll-free at 1-877-225-8817, or 403-225-8810 locally.
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