A Separation agreement is an agreement between parties that were previously in a relationship, be it marriage or common law, which is bound by the governing law of contract. The parties contract to a resolution of issues deriving from their relationship. The agreement is binding on both parties and should one of the parties fail to comply, the complying party can make an application for a breach of contract and seek a remedy deemed fit by a court of competent jurisdiction.
A separation agreement is a detail-oriented document with issues ranging from parenting arrangement to debt and division of matrimonial property. It is unsurprising that in all its complexity individuals often make mistakes when drafting the agreement. Common to these mistakes are the following six.
1. Not Getting Independent Legal Advice
Parties to a separation agreement may feel it sufficient to draft the document with each other’s consent and execute the agreement together, by simply signing on a dotted line. Unfortunately, that is not how it works. In order for a separation agreement to be legally binding, each spouse MUST receive independent legal advice from his or her own lawyer. Even if one lawyer drafts the agreement, the other lawyer must review the agreement with the other spouse and both lawyers are required to execute a certificate of independent legal advice. This is a critical step in validating a separation agreement because it ensures that each spouse has read and understood the terms of the agreement and is not under duress to execute same.
2. Not sharing full financial disclosure
Disclosing all assets for the purpose of a separation agreement is always in the parties’ best interest. If one or both spouses are dishonest at the time of the agreement, once the information resurfaces, it may result in litigation that challenges and overturns the terms of the existing agreement. In addition, if the matter does go to litigation, both parties will be required to provide full financial disclosure anyway and if one of the parties refuses to do so during litigation, he or she may be held in contempt of court.
3. Using “Do it Yourself” Packages
While there is a growing culture of self-sufficient lawyering, especially to reduce costs, “Do it Yourself” kits can result in an ill-prepared and inaccurate agreement that results in an even greater cost having to fix mistakes made independently. It is in a client’s best interest to seek legal advice, even if it is an initial consultation.
4. Concede in order to rekindle the relationship
When drafting a separation agreement, ensure that the terms included are things that you really want. Parties have agreed to include certain terms, especially in relation to children, with the pretense that his or her spouse will get back together and once that does not happen, the spouse no longer wants to comply with the separation agreement. Ensure the terms that are included are terms you will be satisfied with overtime.
5. Making provisions for things you have no legal responsibility for|A separation agreement is certainly the place to address all unresolved issues in a terminated relationship. However, not all issues can be addressed in an agreement. For example, a spouse cannot determine college expenses for a minor child. A parent has no legal responsibility to pay for a child’s post secondary expenses. Thus, it should not be included as a term of the agreement.
6. Leave out “irrelevant information”
Frequently in separation agreements, couples will focus on a single issue that they deem important and bypass all the other factors. Once time has passed and those issues surface, they have no recourse because it was never addressed. For example, couples might become so consumed by child custody and visitation and in doing so, bypass matters pertaining to finances and property distribution.
A Separation agreement requires thought and reflection prior to execution. Review all drafts with a lawyer before executing the agreement to ensure it reflects exactly what you expect.