Drafting Your Own Separation Agreement – Part 2
My earlier post Drafting Your Own Separation Agreement, Really? (Nov 2013) set out the basic elements of a separation agreement. Here are the highlights from that post:
- The legislated formal requirements: Each domestic contract must be in writing, signed by the two signatories and witnessed and dated. Revisions or a subsequent agreement must also meet these formal requirements.
- The structure of the document: The composition of a family law separation agreement is standardized. The background introduces the parties and sets the stage for the substantive provisions of the agreement. The releases and general terms follow. The signing page, schedules and certificates of independent legal advice fill the last pages of the agreement.
- How content meets purpose: Making certain that the provisions are accurate, there is internal consistency among the substantive provisions and the waivers, and the provisions clearly set out commencement and termination dates, if possible.
- If you are intent on drafting your own agreement, pay for at least an hour of independent legal advice from an experienced family law lawyer to ensure your document is enforceable and satisfies what you intend it to cover for today and down the road.
Facing a few hurtles or your spouse or partner is reluctant to move forward without having a family law lawyer involved? Here are some options to consider.
Involving the Lawyers to Save Money
If you dabble in DIY projects you’ll know that it’s rare to dive into a project without first having some knowledge about the design, the products you’ll need, and the technique to accomplish the project. A mistake in a design element or using the wrong product or a timing error at the execution stage means starting again and wasting valuable resources. Your time and your money.
Or, you may decide that now’s the time to call in an expert to help you eliminate the chaos. Seeking advice for the step you missed or having the specialist work alongside you so you can learn along the way. For some, it’s putting the whole project in competent hands.
It’s no different in trying to write your own separation agreement.
Some spouses and partners want to maintain full control over the process from design to execution. Others want to keep the peace within the family and participate as they are needed to ensure their wishes are properly understood.
Spouses who are confident in the provisions they have developed for their separation agreement may be content to simply consult with a family law lawyer from time to tame or seek a on the completed document.
Putting aside style differences, an open mind as to the suggested drafting changes the lawyer may offer to ensure compliance with Ontario family law and, for married spouses, divorce legislation will prove invaluable.
This process involves each client retaining their own family law lawyer. One lawyer takes the lead to draft the formal domestic document from lists of terms both spouses have provided. It is more cost effective for the parties for the lawyer to draft a fresh document than to revise a previous draft.
Where the partners are amicable and on the same page, the lawyers may suggest arranging a four way meeting. At a four way meeting both partners and both lawyers can openly discuss the legal issues and drafting suggestions at the same time. This is often a very cost efficient way to proceed as all voices are heard and disagreements can be resolved on the spot. If there are complicated areas requiring a specialist such as a tax accountant or valuator, they too can join the meeting either remotely or in person. With more than 20 years’ experience, there’s usually at least a term or two which need to be added in.
Collaborative Family Law
This is an interest based process using family law negotiation principles. In Collaborative family law clients explain in a confidential setting the interests they wish to achieve. Interests are the needs, concerns, hopes, and fears about what the future will look like for each member of the family. Clearly then, confirmed positions or requests for acceptance of a one sided agreement are not permitted. Why? Because the nature of this process is to share what each spouse wants to achieve and work together on. Satisfaction is reached when both spouses leave the process content with the outcome.
A preconceived agreement broken down to the essential core interests will be well received in the Collaborative family law process. The willingness to allow the process to lead to a comprehensive agreement of those interests with each spouse participating as the inquiry unfolds. Focusing on getting the ground work accurate eases the task of getting the final agreement complete and enforceable.
This is another interest based family law negotiation process. A neutral facilitator will assist the spouses on working through all issues or, just a set of related issues such as a child’s right to support and a flexible parenting plan. Typically each spouse meets with his or her own lawyer first to understand their legal rights and obligations before the mediation commences. When the relationship between the spouses is a positive one, their lawyers will not be present at the mediation sessions.
Some mediators will allow a spouse to bring the sketched out terms of the separation agreement jointly drafted by the spouses to a preliminary intake session. If both spouses are in agreement, the mediator may assist the participants in working through some roadblocks or clarifying a jointly held interest. The mediators will draft any revisions to the issue they have been retained to deal with.
The clients will then return to see their own lawyer for independent legal advice.
Independent Legal Advice
At the end of whatever process is chosen by the spouses or partners to revise or refresh the terms of a separation agreement, obtaining independent legal advice is the one of the most important steps.
This step is a no nonsense information session by a family law lawyer explaining to you the meaning and consequences of the agreed terms of the domestic contract. Once the impact of the agreement is understood, further negotiation may be necessary to clarify or explore the scope of the rights as provided in the draft.
For more information on ensuring that the process chosen to negotiate a separation agreement benefits you, please contact my office.