SEPARATION AGREEMENTS
It is always better if the two of
you can agree on how to settle the issues between you. Court proceedings
can be very expensive and take a long time. Signing a separation
agreement is a very important step. Your decisions now can affect you
and your children for the rest of your lives. A properly executed
separation agreement can be treated by the court like a
court order. Note: The court does not require that you
have a separation agreement.
The law leaves the decision about
having a separation agreement to you. You may have a hard time proving
that you and your spouse had promised to settle things a certain way if
you do not have a written, signed and witnessed separation agreement.
This could be a problem if your spouse stops respecting your informal
agreement.
There
are very important issues that you should (but are not required to) set out in a written,
signed and
witnessed agreement, including:
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Date
of separation
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Issues related to your children:
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Who will they live with?
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Who will have 'custody' (major decision making powers)
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If the children live with one parent, what are the other parent's
rights to access?
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How much child support will be paid?
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When will child support end?
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Issues related to spousal support:
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Will one
spouse pay support to the other?
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When
will support end?
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If there
is no support, is it waived forever?
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Issues
related to your property:
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Whether
or not you have already divided your property
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If there is property to divide, who gets what?
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If you have a house:
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Will you sell it?
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Who is responsible for it until it is sold?
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How will the proceeds be divided?
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What happens if you can not agree on the terms of
purchase?
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Issues
related to your debts:
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Do you have outstanding debts (credit cards, loans,
mortgage)?
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Who will be responsible for which debts?
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What about debts incurred after separation but
before divorce?
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Issues
related to pensions, RRSPs, RESPs, etc:
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Will you split your pensions and/or RRSPs?
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If you have RESPs, who will be entitled to permitted
transfers? |
Even if you
have been separated for many years, have no minor children
and have already divided you assets, a separation agreement
can set these facts out so that one spouse may not claim
otherwise in the future.
DRAFTING YOUR SEPARATION AGREEMENT
Ideally,
you should have independent lawyers draft your separation
agreement. If both spouses work with one lawyer to draft the
separation agreement, once it is finalized, one of you
should take the separation agreement to a separate lawyer
for independent legal advice. If there are issues that you
are having a hard time coming to an agreement about, you
should consider using a mediator. A mediator can help you
come to an agreement on all of the issues and even draft the
agreement for you. He or she would then direct each of you
to get independent legal advice prior to executing the
agreement*. Another alternative is to have a service like
ezDivorce
personalize a
separation agreement template for you that you can then take
to your own lawyers for independent legal advice (although
this is not required in Ontario). Of course, you can
always decide to draft your own agreement. In Ontario, your
agreement must be in writing and signed by both you and your
spouse along with a witness to be considered a 'Domestic
Agreement' under the Family Law Act.
*In some
jurisdictions (not Ontario), independent legal advice is required to make
a domestic contract legally binding.
In the Superior Court of
Justice case of
Covriga v. Covriga, a case in which neither party
sought legal advice, independent or otherwise, prior to
executing an 'ezDivorce' drafted separation agreement,
the Court upheld the validity of the agreement. This is
of course no guarantee that a court would not invalidate
an 'ezDivorce' drafted separation agreement in the
future.
ezDivorce
can draft a personalized
separation agreement for you. The cost is $300.
The
separation agreement comes with a significant disclaimer.
Please click
here
to read the complete terms.
