Separation Agreements: Part 1 Doing it Yourself or Finding the Right Lawyer For You

Separation Agreements: Part 1 Doing it Yourself or Finding the Right Lawyer For You

Break ups are painful and having to deal with legal documents when your heart is broken may feel like trying to organize your closet when your house is on fire.  Sometimes it’s better to get out of the house and hire someone to put out your fires and help you clean up the mess. (For mental health resources during a separation, see our blog, Managing Stress During a Divorce or Separation)

Whether you and your spouse are married or common-law, it’s advisable to prepare a Separation Agreement. A Separation Agreement is a comprehensive agreement that confirms how you and your spouse have decided to divide assets and debts, how you’ll take care of the children, and whether one person will pay child support and/or spousal support. 

You can choose not to do a Separation Agreement, but if you have children or significant assets and debts, you and your spouse will want to ensure that you’re in agreement about how to parent the children and divide your property and finances.

You can also choose to draft your own Separation Agreement, but I don’t recommend it. There are websites online that offer templates, but I’ve never seen a “Do It Yourself” Separation Agreement that didn’t need to be completely rewritten. Important terms are often missing, or too many terms are included and they contradict each other. DIY Separation Agreements are also relatively easy to have set aside if either party later complains that the agreement was unfair and they would not have signed it if they’d received independent legal advice. 

Choosing the right lawyer for your case may be one of the most important decisions you’ll ever make. A good lawyer is expensive, but the alternative may cost you more in the long run. For more information about representing yourself, see our blog, Is it a bad idea to get a divorce without a lawyer in BC?

Even if you’re sure that you don’t want to involve lawyers in your separation, do yourself a favour and meet with at least one lawyer for a 30-minute consultation. An experienced lawyer will be able to provide you with more insight into your case in half an hour than you can find on the Internet after hours of Googling. Hart Legal offers free 30-minute consultations in Victoria and Vancouver. If you’d prefer not to meet in person, the consultation can be held over the phone or through Zoom. 

If you qualify for legal aid or can afford to retain a lawyer, he or she will be able to walk you through every step of your separation. If you can’t afford to retain a lawyer to handle every aspect of your separation or divorce, you can sign a limited scope retainer with a lawyer who offers unbundled legal services. For example, some of our clients retain us to prepare and file their court documents only, and then they attend and represent themselves at their court appearances. Several lawyers at Hart Legal offer unbundled legal services and would be happy to answer any questions you may have about this option.

Whether or not lawyers are retained, it is important that you and your spouse obtain independent legal advice on your Separation Agreement before signing, and that both lawyers provide signed Certificates of Independent Legal Advice. This ensures that both parties understand what they’re agreeing to, and it makes it much more difficult for either party to try to set aside the agreement in the future.

Depending on your circumstances, you may want to consider retaining Collaborative Family Lawyers.  Collaborative Family Law is a good option for couples that are committed to avoiding court, working together amicably, and are interested in obtaining assistance from a range of professionals, including but not limited to lawyers, divorce coaches, financial advisors, and parenting experts. Both parties will be required to retain a lawyer on the Collaborative Family Lawyer Roster, and the parties will need to enter into a Collaborative Family Law Agreement. 

Collaborative Family Law is not a good option in cases involving family violence or parties in high conflict. If the Collaborative Law process fails, both parties will be required to fire their lawyers and start over again with new lawyers. Unfortunately, I’ve met with several clients who have invested tens of thousands of dollars in the Collaborative Law process only to have to start over from scratch because a comprehensive agreement could not be reached. Due to the number of professionals involved in the Collaborative Law process, many people are surprised to find out that it tends to cost more than it would have if both parties had just retained their own family lawyers outside of the Collaborative Law process. For these reasons, Hart Legal does not currently have any lawyers on the Collaborate Family Lawyer Roster. We prefer to work collaboratively and respectfully with opposing counsel, without binding our clients to avoid court if and when it becomes necessary. 

On the opposite end of the spectrum, I’ve met several people who want to hire a “pit bull” lawyer who will make their ex’s life a living hell. While there are lawyers out there who fit that description, the best outcomes are achieved when both parties retain family lawyers who are calm, level-headed, knowledgeable, reasonable and respectful. It is possible for parties and lawyers to work collaboratively without being bound by a Collaborative Law Agreement. Even the most stubborn and difficult parties can reach an agreement out of court if both parties are represented by lawyers who work well together. On the other hand, even the most amicable couples can be driven to spend tens of thousands of dollars squabbling in court if the lawyers are overly aggressive. 

A good family lawyer will fiercely advocate for his or her client when the client is being bullied or manipulated, but it’s equally as important for lawyers to be able to view their clients’ cases objectively and offer firm advice when it becomes evident that their own client is being unnecessarily difficult or unreasonable. A good lawyer will tell you when you’re hurting your case and will help you minimize the damage. 

Once you decide who you want by your side (or whether you want someone by your side) through your divorce or separation, you’ll have to decide which procedural options are best for you. Fortunately, you and your spouse can control the process to some extent. For more information about the options available to you, see Separation Agreements: Part 2, Procedural Options After Separation.