Separation Agreements: Avoiding Common Misconceptions (Part I)
Preparing a list of terms to be drafted into a partial or final separation agreement can be an overwhelming task for spouses during this period of transition. Consulting with friends and family who have gone through such a family transition may inadvertently invite some myths and misconceptions into the dialogue between spouses. Here are common myths to be cognizant of and how to assess their applicability to your circumstances.
Misconception: There are no time constraints to settling the division of family assets
There are specific time requirements for married spouses which if not adhered to, may result in an inequitable sharing or division of property. The statutory timeframe in which property must be divided is two years after the day the divorce order is granted or judgment of nullity; six years after the day the spouses separate; and six months after the death of a spouse. If these deadlines are fast approaching, obtain legal advice as soon as possible to preserve your rights until all matters are resolved.
Misconception: A handshake confirms a binding agreement
Not in Ontario. Formal requirements must be adhered to for a domestic agreement to be binding and enforceable. There are three essential elements: the contract must be in writing, and signed in the presence of a witness. Ensure also that the document is dated when executed to distinguish it from any future amending agreements.
To avoid confusion and to assert this executed agreement is the only valid one typically there will be a clause in the agreement’s preamble noting that this agreement replaces and supersedes all prior and oral agreements of every kind made between the spouses.
Misconception: No lawyers required – we can do this!
Populating parts of an online template seriously risk the financial welfare of everyone involved as well as the family business. To put an effort into designing your own contract will be for naught if there are internal inconsistencies, foundational provisions lacking, and absent critical clauses.
A custom separation agreement is unique to your family. Experienced counsel will know the rights and obligations requiring detailed provisions and those which are not relevant and can be released.
Misconception: Separation agreements provide closure for the past
The well-considered decisions and roles are undertaken within the family and business, the distribution of wealth, and the resultant economic consequences during cohabitation become the basis of inquiry for claims for future financial stability and property division by each spouse.
The choice of process to review the past with a view to finding a mutually-satisfying settlement may involve mediation, negotiation, litigation or arbitration. Each process must be carefully considered as the decision-makers’ cost, time, and focus vary widely.
The legal remedies offer a balancing of financial considerations to rectify claims of economic disparity and wealth inequality. A spouse may not find emotional closure for the pain suffered during a relationship. A support network of friends, family, and counseling may assist with healing. For many families, an inclusive collaborative approach to resolving legal issues together permits spouses to address all facets of an issue for each member of the family.