GOTTLIEB LAW FIRM

A separation agreement is a written contract that you and your partner make that outlines the myriad ways each of you will deal with issues that arise out of the separation, such as support obligations, division of property and support for children. You can enter into a separation agreement if you’re married or in a common-law relationship. If you’re married, you do not get a divorce by signing a separation agreement. Divorce is obtained by applying to court to grant an order for divorce. However, you can approach the subject of when and how a divorce will be obtained within your separation agreement. You may choose to divide your assets and decide on custody, access and support issues in an informal agreement or through the services of one of our very experienced lawyers who will support you in the drafting of a more formal separation agreement. 

 

Section 54 of the Family Law Act states:

 

“Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including:

• Ownership in or division of property;

• Support obligations;

• The right to direct the education and moral training of their children;

• The right to custody of and access to their children; and

• Any other matter in the settlement of their affairs”

 

Once executed, a separation agreement is treated as a court order which may then be enforced on a later date if one of the spouses fails to abide by the terms of the separation agreement. A separation agreement should generally include specific information regarding how any issues faced by the separating couple are to be determined, such as:

 

• Parenting Arrangements:

Spouses should determine who has custody of the child(ren) and what the access schedule will look like. How much time will the child(ren) spend with each parent, and when? Parents would also want to provide details of a parenting plan, specify what happens if one parent wants to relocate and how this will change the parenting schedule.

 

• Child Support:

The basic amount of child support should be determined in accordance with the Child Support Guidelines’ table amount. Parents will also need to decide on any special or extraordinary expenses for the child, and how they will be paid for. These expenses may include daycare, special needs programs or extracurricular activities. Parties should also specify when child support payments are to end and what types of changes in circumstances would lead to a change in support payments.

 

• Spousal Support:

Parties should indicate whether any spousal support will be paid from one spouse to another and if so, how much, when and for what duration. If spousal support claims are waived, the agreement should also specify details with respect to this. Parties may want to indicate what circumstances would result in the termination or change of support (for example, a drop in the payor’s income or the recipient’s re-marriage).

 

• Dispute Resolution:

Parties should stipulate how any future disputes will be resolved in the event that issues arise in the future which cannot be agreed upon. Parties may wish to specify a mediator or arbitrator who they shall approach in case of a conflict.

 

• Property Division

The separation agreement should also determine how net family property will be divided, how the equalization payment will be paid (lump sum or installments) and when it will be paid.

 

• Life Insurance:

Spouses may want to indicate that even after their separation, each partner would keep the other or their children as his or her beneficiaries.

 

There are numerous separation agreement templates available online and in stores. While these may offer guidelines on the types of issues you and your spouse need to negotiate and finalize, they should be approached with caution, since separation agreements have serious and lasting consequences. It is important to bear in mind that the separation process can be emotionally challenging and can affect individuals’ ability to make decisions in several ways. Our experienced family lawyer can help protect your rights and ensure that you understand the repercussions of any agreement.

 

Section 56(4) of the Family Law Act states that upon application of one of the spouses, a court may set aside a domestic contract in one of three instances:

 

a.   If a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;

b.   If a party did not understand the nature or consequences of the domestic contract; or

c.   If the contract is otherwise not in accordance with the law i.e. the contract is unconscionable or there has been undue influence.

 

There is always the possibility that a separation agreement will be overturned by a court if one spouse applies to have it set aside. Problems relating to disclosure are common. If one of the parties is unaware of important financial information, that can be cause for overturning the agreement. It is therefore important for parties to provide all financial information and ensure its accuracy. Additionally, a one–sided separation agreement will make courts suspicious that one spouse was not completely aware of what they were entering in to, and any indication of a failure to disclose will therefore make the agreement susceptible to being cancelled. It is in parties’ best interests to ensure that each party understands the agreement they are signing is doing so willingly. If one spouse feels pressured, confused or rushed, this can be grounds to contest the agreement later and its possible termination.

 

It is always a good idea to obtain independent legal advice before signing a separation agreement. Unfair agreements sometimes put the parties in a terrible situation. This can prolong legal procedures by months or years. The right lawyer will not only help you understand all legal terminology by simplifying it, but also guide you towards the most appropriate solution for your problem. A detailed agreement will ensure that your rights will be protected by the law. Our lawyers at Gottlieb Law Firm can not only help you understand your rights and responsibilities toward your children and your partner, but can also help identify loopholes in existing agreements. These loopholes could potentially sabotage what was thought to be a binding agreement.

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For more information contact Gottlieb Law Firm located in the Greater Toronto Area,

call us at (416) 227-1653 or send us an email at: 

ggottlieb@gottlieblawfirm.com