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.
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.
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