Do I need a Separation Agreement?
(hint: you probably do)
A separation agreement is a very detailed document, setting out the terms of your divorce settlement or separation. A good and thorough separation agreement will deal with child support, spousal support, parenting and the division of property. If you’re married, you will need to have Matrimonial Property Act certificates attached to the separation agreement in order for it to be valid and binding. By executing such a certificate when you sign the agreement you are acknowledging that you are award of the claims that you have under the Matrimonial Property Act, and that you are executing the agreement separate from your spouse. You will also each need to meet with a lawyer to sign the agreement and receive independent legal advice to help ensure that the agreement is binding in the future.
You and your spouse cannot be represented by the same lawyer. If you are very amicable, one party may retain a lawyer initially to draft the agreement. You may even come to the lawyer with all terms of the agreement settled. Once the agreement is drafted and you and your spouse are in agreement with the terms, the other party will meet with another lawyer to receive independent legal advice.
But is such a detailed agreement necessary? In our opinion, it is almost always necessary. Having a properly executed agreement setting out all of the details of your parenting plan and child support is important, because it provides clarity in the future. There will be more details in your separation agreement than there will be in your divorce judgement. An agreement that sets out the terms of any spousal support payable, or waiver of spousal support is also important, because it provides clarity on the arrangements and the agreement that you have reached with your spouse. It’s particularly important to have a properly drafted spousal support waiver to help strengthen the agreement and make it less likely to be set aside in the future. Finally, it’s very important to have a detailed agreement on division of property. A properly drafted agreement will ensure that neither party can bring a claim in the future for any further division of property and brings finality and closure to the sometimes complicated untangling of family property.
Is it every possible to get a divorce without a separation agreement? Maybe – if there are no children and no property to be divided, but we urge you to seek legal advice about your own situation.