Who do you think is in a better position to decide what is better for you as a separating couple, and for your children – the two of you or a robed stranger, seeing bits and pieces of your lives. Take it form a family and divorce lawyer – In most cases that do not involve abuse and high conflict, the answer is clear – your lives, your separation, your terms. As an added benefit, separation agreements may reduce the tension and prevent further deterioration of a relationship by importing financial certainty into your respective lives, without having to involve the Court.
Separation agreements are domestic contracts and, therefore, legally binding document, which can be filed with the Court and enforced. Two persons who are married or who have cohabited and are now living separate and apart may enter into a separation agreement, which can address almost all matters in the settlement of their affairs. A separation agreement is your chance to be the creators of your own destiny, since you are allowed to spell out your respective rights and obligations regarding ownership in or division of property, spousal and child support obligations, and custody of and access to children.
While separation agreements provide a great deal of flexibility in arranging financial and familial affairs and are usually a much less costly alternative to protracted court applications, these contracts are always subject to best interests of a child test. Specifically, the Court retains the final authority to decide the matters concerning the education, moral training or custody of a child. Separation agreements do not allow parents to get out of their child support obligations with impunity. An agreement must substantially comply with Child Support Guideline and the Court is free to set aside any provision that is unreasonable having regard to the Guidelines.
Separation agreements have a significant and long-lasting impact on many areas of your life, long after signing. They may have significant tax consequences and can also influence your estate planning, immigration and financial future for years to come. It is not only a good idea, but indeed essential to have a separation agreement prepared and reviewed by lawyers.
If not prepared properly, a separation agreement may not have a desired effect. When entering into a separation agreement, as with any other domestic contract, it is crucial that both parties receive separate and independent legal advice. If, following repeated insistence, and after having been given sufficient opportunity to seek independent legal advice, one of the parties still refuses to do so, but wishes to execute the agreement, all efforts should be made to address this refusal in the contract itself.
For a separation agreement to be a useful alternative to a court process, both parties need to be committed to its provisions. If you have a solid Separation agreement, your divorce pleadings will also be simpler, as you will make it easier for the court to grant you an uncontested divorce.
Three parting tips to remember when working with your lawyer on negotiating a separation agreement: be reasonable, don’t be accusatory or defensive and always be honest with your lawyer. While separation is a trying time, you will not help yourself by using the negotiating table as an area of choice to play out relationship frustrations, resentments and recriminations.
If you and your spouse believe that you will be able to muster enough goodwill to agree to terms of a separation agreement, you should strike while iron is hot. Waiting to settle your family matters in order to save a couple of thousand dollars now will put you at risk of losing far more in the long run. The chances are that, as time passes, either yours or your spouse’s priorities will shift, and one of you will likely change his or her mind about a material point of agreement.
Variation of a Separation agreement.\
It is possible to apply to the court to vary a term or terms separation agreement, a Court will only change the terms of a separation agreement when there is a compelling reason to do so. For example, if the agreement is unfair and one sided. Although it provides significant safeguards, a separation agreement is rarely an airtight guarantee of the outcome of your separation. The courts, nevertheless, show great deference to separating spouse’s contracting autonomy. Applications for variation of a separation agreement in Ontario are considered in light of numerous factors, such as how the agreement came into existence, the conduct of both parties at the time of negotiation, full and frank financial disclosure and other common law and statutory considerations found in the Family Law Act.
Ivan J. Steele, M.A., J.D.
Barrister and Solicitor
Ivan Steele Law Office