Separation Agreement: The truth of the matter is that you don’t necessarily have to end up in court if your marriage did not work out
There is only one thing in any divorce proceeding which only, the court can give you and that is the divorce itself. However, all other issues which must be addressed before the divorce is granted, such as custody of and access to the children, child and spousal support and equalization of property, can be dealt with by way of separation agreement . If the parties enter into the separation agreement, their divorce proceeds on uncontested basis and although it is granted by the court, no trial (or even the actual court appearance) is necessary, everything is done by paper.
Separation Agreements Ontario
Normally, the cost of preparation and negotiation of the separation agreement is significantly lower than any contested divorce proceeding. And if you add to that the hostility and stress which usually accompanies such contested divorce cases, the benefits of resolving issues by way of separation agreement become even more obvious.
Obviously, it is not in every case that the spouses are able to work out an agreement satisfactory to both of them and certain situations require the court’s intervention, however, it never hurts to try an amicable resolution which saves time, money and preserves your sanity.
The separation agreements also have an advantage of flexible and customized approach to any given family’s particular and unique circumstances as opposed to a decision of the judge which is imposed upon the parties and often makes neither of them happy.
It is important to remember that although the separation agreement is a compromise between the parties and usually does not represent the best result one of them would get in court, some provisions are simply unenforceable and should not even be included in the separation agreement. For instance, while your spouse can agree to waive her rights to spousal support, under the law she cannot waive the child support in the separation agreement or otherwise.
Separation agreement should set the child support obligations of the child support pay or based on his or her income and the Child Support Guidelines. Such agreement should address the issue of custody of the children. It can also provide for orderly access schedule giving certainty and predictability of visitations to the children and parents alike. Alternatively, it can provide for generous and liberal access which essentially means that the parent who does not live with the children can visit them at any time convenient to everyone involved.
It is crucial for any separation agreement to be valid that both spouses exchange full financial disclosure. In other words, if one spouse is not fully aware of the true financial situation of the other, such spouse can successfully challenge the validity of the separation agreement and if the court sets aside the agreement, then the matrimonial issues will be determined by application of general family law principles.
Also, each party to the separation agreement should receive independent legal advice prior to signing it. This means that one lawyer cannot represent both sides of the separation agreement.
The task of any lawyer providing independent legal advice is to explain to the client the law, the provisions of the separation agreement and how they alter the otherwise applicable legal rules, nature and consequences of the agreement and to ensure that the client fully understands the agreement and is entering into it voluntarily.