Separation agreements are something that the family law lawyers at Hart Legal have a lot of experience in negotiating, drafting, and giving advice about. Many of our clients come to us with the goal to arrive at such an agreement with their spouse rather than ending up in court. A separation agreement is a legally binding contract between spouses that settles the issues between them after they separate. They can cover everything from parenting arrangements, to child and spousal support, to pension division and property division. In British Columbia the legislation used is the Family Law Act.
The most efficient and least expensive legal separations are ones where both spouses are relatively on the same page (or at least in the same ball park) about how to move forward with answering such questions as to how to divide their assets, how they will support the family, and how they are going to parent their children on an ongoing basis. They negotiate and agree on terms that can then be filed with a court. Although filing it is not strictly necessary, once filed, a separation agreement has the full force and effect of a court order. A divorce can then be completed if necessary after married spouses have been separated for at least one year.
We highly recommend that, if possible, our clients enter into such a legally binding contract.
Separation Agreements – The Top 3 Biggest Mistakes
Yet, despite their best intentions, separated spouses often make 3 costly and easily avoidable mistakes.
Mistake #1 – Not Making Full Financial Disclosure
Even if you don’t want to share it, you have to disclose all of your assets when negotiating the terms. The agreement is only binding if both parties make full and complete financial disclosure. If your spouse finds out down the road that you didn’t mention that secret Swiss bank account you had that can be a reason to challenge and overturn the terms of the agreement.
Mistake #2 – Not Getting Independent Legal Advice
In order to make your separation agreement fully legally binding, each spouse must receive independent legal advice from his or her own lawyer. This does not mean that two lawyers need to be involved from start to finish in negotiating and drafting the agreement; rather, each party should at the very least have a sit down with a lawyer to review the terms of the agreement. Doing so, and having the lawyer sign a certificate of independent legal advice, is intended to show that each party understood his or her rights and obligations and signed the agreement without coercion or undue influence. It also makes sure the separation agreement is fair.
Having independent legal advice with respect to your separation agreement helps make sure it remains legally binding.
Mistake #3 – Using a “Do It Yourself Kit”
While using a “do it yourself” kit for your divorce or separation may seem like a cost saving idea, we have often seen this idea back-fire and our clients have ended up spending way more fixing a bad agreement than they would have if they hired a lawyer in the first place.
Now, this may seem self-serving because a lawyer is writing this, however, it is still true. Some people want to save legal costs by using a kit or finding an agreement online. The problem with this approach is that these kits usually don’t account for the legal subtleties involved in a lot of separations. Agreements found online may not even be in accord with the law of British Columbia (or your own province or state). Having a lawyer assist with your agreement is a wise investment. It’s an investment in knowing that if your spouse wants to challenge the agreement in the future, it will be very difficult to do so. Making sure your agreement is legally binding is a great investment.
We regularly meet with clients who didn’t make this investment at the outset and ultimately end up in court, sometimes years after they believed all their issues with their ex were settled.