Do It Yourself Separation Agreements (A Caution)

Posted on 15 October 2020 Back to News

By: Lori Aylwin

Associate, HGR Graham Partners LLP

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On a regular basis, we have clients come to us with a rough agreement drafted around the kitchen table.  Sometimes they ask us to draft a Separation Agreement for them. Sometimes they don’t want us to write the Agreement at all; they just want us to help them “sign off” on an Agreement that they have drafted themselves from their own research or based on a friend’s advice. These are the client’s who tell us they are “amicably separating”, they “just want out”, and/or they “don’t want to spend a lot of money on legal fees”.  Quite often these clients have:

  • done some research on the internet and talked to their friends and family who have separated,
  • sat down with their spouse, and
  • they have worked issues out between themselves such as where the children will live, how their family property and debts will be divided, and how much spousal and child support will be paid.

They come to us saying that they have “worked it all out” and they just want to get a Separation Agreement for them based on what they present to us.  Typically, they want us to do the agreement as quickly and inexpensively as possible.

My caution to you is when it comes to Separation Agreements is –  do it right the first time and see a lawyer who can help to ensure that your Separation Agreement is valid and enforceable down the road.

When parties come to us with “kitchen table agreement” in hand, it is our duty as family law counsel to ask probing questions and look at documentation that will give background to the agreement.  We will ask the questions and ask for documents pertaining to income and property,  not in an effort to undo what you want to achieve in your agreement, but because we have minimum professional standards that we must meet as lawyers which require us to ensure that we can properly advise our client  regarding their entitlements, obligations and risks. Further, we want to ensure that you have an agreement that is going to be effective to achieve finality.  To meet professional standards and to fully advise their clients regarding a Separation Agreement (even if the parties are amicable), a family law lawyer should:

  1. Obtain sufficient reliable information to be able to ascertain what the client would likely receive or be required to pay for spousal support, child support, and matrimonial property division should the matter be resolved at a family law trial;
  2. Give their client a description of options to any proposed settlement, an opinion on whether any proposed settlement is reasonable, and a discussion of the pros and cons of that settlement in comparison to the other options so that any decision to settle is an informed decision; and
  3. Tell a client (who takes the position that he or she wants to settle without having received full information from the other side) that they may be accepting less or paying more than what would be required according to law. To provide to that client an assessment of the impact of the risk including estimates of the value of what might be lost or paid above what was necessary, to the extent possible, and on the basis of the information then available.
  4. Ensure that the Agreement is drafted in a manner that:
    1. meets legal formal requirements for a valid contract:
    2. ensures the agreement is effective to release the parties from obligations that arose on marriage or cohabitation; and
    3. contains provisions that can be legally enforced if necessary.

You are entitled to make your own deal when separating,  and to give up legal entitlements in order to achieve a settlement , but that will never excuse your lawyer from the requirement that he or she ask the questions and get all the information needed to properly advise you and to help you make informed choices.  So, if you have reached an agreement about your separation while at the kitchen table with your former spouse…. Congratulations…but remember go to a lawyer before signing anything and, if you come to our firm, be prepared for questions and bring along your paperwork so that you get an agreement that will really work for you.

*The content of this article is intended for general information purposes only and does not constitute legal advice or an opinion of any kind.  For information or legal advice on your individual circumstances, please contact Our Family Law Team.

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