Tip 1: Covering the financials
In order to write a separation agreement that is legally binding it is important for both spouses to be completely honest about their circumstances – including their financial situation. If you are not absolutely sure that your spouse is being clear on their finances with you, it can cause a lot of upset emotional as well as legal. A Separation Agreement can be set aside by Courts of Law if the Judge finds that one of the spouses/ partners was not completely honest and failed to disclose material financial assets and information. This is Misrepresentation fact and can have a Separation Agreement trashed into pieces.
Taking advice and assistance from a Separation Agreement Lawyer, in this case, is the best thing to do as if a person who is being less than honest with their former spouse about their financial position is more likely to reveal all if they know you have a backup from a legal standpoint. Your lawyer should make sure that both parties have completed a Financial Disclosure Form and have dully signed and commissioned it as per the requirements of Law. If you are doing it yourself then you would need Form 13 for mere support and 13.1 for support and property to be filled out and commissioned.
Tip 2: Start and End date of the Relationship
Make sure you have a start and end date of the Relationship. In some cases, parties may be living together before getting married. In such situations, you would enter the date when you started to live together even if you were not married. You would also need to insert a separation date because the division of property is to be calculated based on the date of separation.
Tip 3: Equal Division of Property
Under Canadian Family Laws, there is a general presumption considered that there shall be an equal division of all assets and liabilities as of the date of separation. Although it is possible to divide property unequally under Family Laws and your lawyer should be able to help you prepare a separation agreement based on an unequal division of property legally.
Tip 4: If you both want to stay in the family home
Most people assume that one or the other spouse has to leave the family home before you can be considered legally separated. In fact, this is not the case. A lawyer can explain what constitutes ‘living apart’ while being under the same roof, meaning that you can be separated in the legal sense sooner than the time it takes for you or your spouse to make other living arrangements. The details of these complexities of living in the same home but apart can be explained and settled on for the separation agreement, but it can be complex to decide on the details, and a lawyer can provide advice as to how this should work.
Tip 5: There are children involved
No parent knows how they are going to feel once they have to see their children on a part-time basis should they choose to separate. This is a common theme across separations and divorces in Ontario and all over the world. Parents agree between themselves how to make child sharing arrangements, but then one or the other parent misses having the children as much further down the line and this can lead to numerous arguments and legal wrangles over custody. Agreeing what is fair and right can be complex when it comes to children and your lawyer will be able to advise you on the best way to work it out without having to keep going back and forth over custody arrangements.
Tip 6: It can get emotional
Generic templates that you might find on the internet may well have been put together with the intention of assisting those people who are looking to separate. However, every case is different and separating can be a very emotional time. Even the most level-headed of people can lose their calm when in the process of separation, whether it is over a custody arrangement, a financial proposal or who will move out of the family home and when. This is why having a third party who does not have any emotions invested in the relationship is the best choice to help with the drawing up of an agreement. Your lawyer will be able to advise you whether you or your spouse is being fair and will be able to draw on the experience of working with other couples to advise you as to whether what you are proposing to agree is out of the ordinary and could lead to problems further down the road.
Tip 7: Certificate of Independent Legal Advice
It is crucially important that both parties to the agreement get a Certificate of Independent legal Advice and have it attached with the Agreement as part of the annexures. Many online articles suggest that it is not necessary to have a lawyer review your separation agreement but they do not know the case law on this topic. At Shaikh Law, we are an experienced lawyer who deals in the Separation Agreement and Divorce on a regular basis. If no Certificate of Independent Legal Advice is attached then one of the spouses/ partners can easily claim he/she did not understand the terms of the agreement which is sufficient ground to set aside a valid agreement. Both parties would need to get an independent and separate lawyer to review the agreements and advise them. The Lawyer will make sure that proper financial disclosure is made and would confirm with the parties that they were not forced to enter into the agreement.
Tip 8: What topics a Separation Agreement should contain
A Separation Agreement should ideally cover the following topics and narrate what the parties have decided about the following issues.
- Child Custody
- Child Support & Spousal Support
- Access
- Family Home & Division of Property and
- Pension Plans
- Who will file for Divorce and cost of paying for Divorce as well as co-operation for Signing Divorce Papers
Tip 9: Seek Legal Advice
If you and your spouse have recently separated or are about to separate, then it is a good idea to make an appointment to see a lawyer. Seeking legal advice will help you to get a good understanding of the legal rights in regard to your circumstances, this will allow you to make sure that your interests are properly looked after. You should always make sure that you are receiving the most appropriate legal advice for your circumstances. There is too much to lose both financially and emotionally that it is simply not worth risking completing a separation agreement on your own.
