What You Should Know About Separation Agreements

When your relationship has ended, it is always better and more cost-effective, if you and your former spouse or partner can agree on how to settle the issues between you. Court proceedings can be very expensive and take a long time. Negotiating a separation agreement is faster and cheaper and, if you have children, it helps to preserve a degree of civility between you and your former spouse so that the separation is, on the whole, easier for your children to deal with. A separation agreement is a written agreement between you and your former spouse setting out what you have agreed about such important issues as custody, access, child support, spousal support and, if you are married, how you will divide property. You are not obligated to enter into a separation agreement. The law leaves the decision about whether to have a separation agreement completely up to you.

If you do negotiate the terms of your separation with your former spouse, make sure that the terms of the agreement are written, signed by both of you and witnessed by an independent third party. If you do not commit the terms to a written agreement, you may have a hard time proving that you and your spouse had promised to settle things a certain way. This could become a problem if your spouse stops respecting your informal, and unwritten, agreement. Your separation agreement will not legally end your marriage or common-law relationship; and it is not a divorce. It is a legal contract - which means you are legally bound by and must honour the terms of the agreement. Keep in mind that once you have made the agreement, it may be difficult to change it in the future.

Drafting Your Separation Agreement

Ideally, you should have a lawyer or lawyers draft your separation agreement. If both spouses work with one lawyer to draft the separation agreement, once it is finalized, one of you should take the separation agreement to a separate lawyer for independent legal advice. If you cannot work out a separation agreement on your own, there are people who may be able to help such as private mediators and parenting coordinators who are trained in helping couples resolve family issues.

What Your Separation Agreement Should Include

There are many important issues that you should set out in a written agreement including:

1. Date of Separation

2. Issues Related to Your Children

    Who will the children live with?

    Who will have custody of the children (ie. who will have decision making authority?)

    If the children reside with one parent, what are the other parent’s  access rights?

    How much child support will be paid and by whom?

    When will child support end?

3. Issues Related to Spousal Support

    Will one spouse pay support to the other? If so how much?

    When will spousal support end?

    If there is no support to be paid, is the right to support being waived forever?

4. Issues Related to Your Property

    Who gets what?

    If you own a house: will you sell it?

    Who will be responsible for the house until it is sold? How will the sale proceeds be divided?

    What happens if you can not agree on the terms of the sale?

5. Issues Related to Your Debts

    Do you have outstanding debts (credit cards, loans, mortgage)?

    Who will be responsible for which debts?

    What about debts incurred after separation but before divorce?

6. Issues Related to Pensions, RRSPs, RESPs, etc.

    Will you split your pensions and or RRSPs?

    If you have RESPs, who will be entitled to permitted transfers?

Get Good Legal Advice

Because decisions you make about the terms of your separation agreement now can affect you and your children for the rest of your lives, it is very important to get independent legal advice about your separation and all of the different aspects that should be included your separation agreement. Once you have seen a lawyer and signed your separation agreement, you can choose to have the agreement filed with the court. Once it's filed, you can ask the court to enforce the parts of your agreement that deal with custody, and access if necessary. If your agreement includes child or spousal support provisions, you can also choose to file it with the enforcement agency in your jurisdiction. If you are in the process of working out a separation agreement, but need to settle one or two issues immediately (e.g. custody or support) you can draw up an interim agreement or go to court for an interim order. An interim order is a short-term court order, which will remain in effect until you reach an agreement or go to court for a final decision.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to go about negotiating a separation agreement following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.