Separation Agreements

If your relationship is coming to an end, you will likely want a Separation Agreement.

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A Separation Agreement is a contract that outlines all of your and your spouse’s rights and responsibilities regarding the breakdown of your relationship.  Separation Agreements usually address all legal issues between you and your spouse, such as Custody, Access, Child Support, Spousal Support, and Property Division.

Separation Agreements Are Usually Preferable To Attending Court

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Separation Agreements are usually preferable to attending Court to resolve the issues in your matter because you and your spouse get to decide how to resolve these issues if you can reach an agreement regarding them.  If you go to Court, a judge may decide these issues for you, which means that you may not get to decide who will spend time with your children when, how much support you or your spouse will have to pay, or how your assets will be divided.  Most people would rather abide by an agreement that they reach, than do what someone else tells them they must do, even if that someone is a knowledgeable and thoughtful judge.

Two Requirements That Ensure Separation Agreements Are Enforceable

There are two main requirements to ensuring that any Separation Agreement that you reach will be enforceable, meaning that neither you nor your spouse should be able to set it aside. 

Independent Legal Advice

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The first requirement is Independent Legal Advice, which means that you and your spouse should each retain your own lawyer to draft or review the Separation Agreement for you.  If you do not obtain Independent Legal Advice, then your ex could claim that (s)he did not understand the Separation Agreement, or that (s)he was pressured into signing it, and that it should be set aside as a result.  This is one of the reasons why it is important that you meet with a lawyer before signing any agreements regarding your Family Law matter.

Full Financial Disclosure

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The second main requirement is full Financial Disclosure, which means that you and your spouse must know everything about each other’s incomes, expenses, assets, and debts before you enter into an agreement.  If you do not, then your ex could claim that any agreement reached should be set aside because (s)he did not have enough information to ensure that the agreement was fair.

In order to ensure that your Separation Agreement is not set aside due to a lack of Financial Disclosure, you should complete a Financial Statement.  A Financial Statement is a document that lists all of your assets, debts, income, and expenses.  It is very important that your Financial Statement is completed properly.  If it is not, then your spouse could claim that you failed to disclose important information and your Separation Agreement may be set aside.  You may even be required to pay a penalty to your spouse if a court determines that your Financial Statement is intentionally inaccurate.    

These are just two of the main requirements to help ensure that your Separation Agreement will be enforceable.  There are other requirements, such ensuring that your agreement is in writing, and signed by both of you in front of a witness.  If you have any questions about the requirements or enforceability of your Separation Agreement, you should meet with a lawyer to discuss these issues.

If you have more questions and wish to speak to one of our family lawyers please call to book a free consultation:  (905) 237-5548