Ending a relationship can be a stressful process. Adding litigation to an already overwhelming process can increase tension and redirect energy into things that two partners in a relationship may not want to face. A separation agreement, or Minutes of Settlement, is an amicable alternative to a messy departure. Specifically, it is contract between the two parties of a relationship to settle the settle matters important to the parties prior to obtaining a divorce. While it may me drafted by the parties to the agreement, both partners must seek independent legal advice and have the documents notarized and commissioned. Furthermore, once the parties decide to obtain a divorce, the Separation Agreement can be converted into a Divorce Judgment as long as the terms therein are still relevant and agreeable.
In most cases, one party may retain a lawyer to draft the Separation Agreement and have it executed Independently. However, where parties intend to draft their own agreement, there are specific terms and issues that are worth including in the document.
The first few paragraphs of a separation agreement usually provide a history of the parties’ relationship. This will include the date of the marriage, the date of the separation, and the names and date of birth of any children who may be party to agreement. If the parties are living separately, the agreement should outline the respective city and province in which the parties reside. For example, if one of the parties lives in British Columbia and the Other in Ontario, the agreement would state, “Jane Doe, of Toronto in the Province of Ontario”. It is important to identify the parties’ address especially for the purpose of execution. Separation agreements require original signatures and it is likely the case that the document would travel by courier so each party can execute the document with their respective counsel.
Where children are party to the agreement, a separation agreement will provide for parenting arrangement. Spouses can determine who will have custody, the type of custody (sole, joint, shared, etc.) and how they intend to distribute access. For example, the parties will share the children on a one-week-on one-week-off basis. If the children participate in extra-curricular activities, attendance, pick-up, drop off, the parents will make a provision for same and specify how to accommodate a change in the parenting schedule.
Child support is a major component of a separation agreement that includes children. The parties can include who will pay child support, whether it will be based on the federal child support guideline or whether it will depart and for what reason. If there are extra-ordinary expenses (Section 7 expenses) such as daycare, education, dental, medical, and extra-curricular activities, the parties may decide what is the proportionate share each party is required to contribute. The parties can also agree that the primary custodial parent will not pay child support even where his or her income is greater. Parties should also specify when the child support will end.
Much like child support, the parties should outline any spousal support payments, detailing who is the payor and the payee, the amount of spousal support payable, the start and end date for payment and the method of payment. If spousal support claims are waived, the agreement should specify why or denote any alternative. For example, parties can defer waive spousal support in exchange for the proceeds of sale from the matrimonial home or half of one of the parties’ pension.
A separation agreement should detail the division of matrimonial property. If the property will be sold, how will the net proceeds be divided? If the property will not be sold, who will remain in the matrimonial home?
If life insurance arrangements have been made, especially in relation to the children, parties should include the details of that information in a separation agreement. Information such as how payments will continue and who will receive the payout on behalf of the children is critical.
If the parties have marital debt, it is best to indicate how the debt will be divided.
Although seemingly complex, a separation is detail-oriented to ensure the best amicable outcome among the parties. It is a small investment for peace of mind and avoiding toxic litigation, especially where children are involved.