We Drafted Our Own Separation Agreement. Why Do We Need a Lawyer to Complicate Things?
As my colleague likes to explain if you are in the market to purchase a house will you make an offer to purchase after only looking at the outside of the house from the curb?
A separation agreement in Ontario is essentially governed by legislation: the formal requirements, the contents, what defines a breakdown of a marriage, and numerous other rights and obligations flowing between the parties and the children. The contract may deviate from legislated provisions in a way that does not ‘offend the conscience of the court’.
The purpose of the separation agreement is to define decision making for today and the future for all legal issues arising from the breakdown. Those decisions relate to three main topics.
The first topic considered is the children: their residence, a parenting schedule, their welfare, education, healthcare, religion, and financial support.
Division of Property
The second topic is the division of the net value of all property owned personally, jointly, through the operation of a trust, to be inherited, as a beneficiary, through a corporation, the family enterprise, or any other means using a predictable and evenhanded process.
The third topic is spousal support: entitlement, duration, quantum, review, and termination.
There may be interplay between all three topics. Those terms must demonstrate reliability and consistency of meaning, the inclusion of similar values, and the exclusion or waiver of conflicting rights and obligations. The background facts laid out at the beginning of the contract should support the values and principles of the agreement.
The background statements reflect the relevant circumstances at the time the agreement was negotiated. These facts set a benchmark in the event that there is a material change affecting the rights of one spouse and or the children. When both parties sign the agreement after receiving independent legal advice and full financial disclosure, they are confirming the validity of the facts as stated.
There should be provisions ensuring that the terms are enforceable and durable. Inconsistent and contradictory terms create confusion and may lead to both terms being struck from the contract upon judicial intervention initiated by a party who believes their rights are being infringed. With no valid terms remaining, the court will decide the issue which may be completely different than what the parties had originally intended or bargained for. Further, any rights not defined in the agreement remain available subject to any statute of limitations.
Other terms in a separation will help the former spouses or partners handle disagreements as they may arise from time to time in the interpretation and application of the document in a less expensive and prompt manner. The issue dispute process will usually be drafted as a step process so minor disagreements can be handled efficiently, while more complex matters will proceed along a spectrum moving from DIY to third party adjudication.
Drafting an effective and durable separation agreement is akin to playing 3D Tic-Tac-Toe or Rubik’s Cube. You have to keep an eye on many different facets at the same time.
An experienced family law lawyer will have the legal knowledge to draft an agreement from the ground up ensuring that the document is prepared to be comprehensive and reliable. It is impossible to predict the future. It is therefore important that an agreement has some flexibility, is practical, and the terms are reasonable.