When married couples or couples in a common-law relationship separate and are able to work out a tentative settlement between them with respect to the issue arising from their separation, they may be tempted to forego setting out these arrangements in writing or they may try to prepare their own Separation Agreement using documents they found on the internet in order to avoid having to go through a lawyer. Afterall, why spend money on a lawyer to draw up an agreement if you and your ex are on the same page? Here’s a few reasons why:
- There may come a time when you and your ex are no longer able to work together or co-operate, especially when it pertains to the children, child support and/or spousal support. If you had entered into a Separation Agreement, it would ensure that your respective legal rights and obligations are crystal clear to each of you which should limit the number of disputes between you and your ex regarding your post-separation arrangements;
- It may prevent you from obtaining a divorce. In situations involving a separated married couple with children, the court may decline to grant a divorce unless it is satisfied that reasonable arrangements are in place regarding the children’s parenting arrangements and regarding the issue of child support via a Separation Agreement or previous court order;
- You may inadvertently end up agreeing to an arrangement that is contrary to law and/or which is not legally enforceable. For instance, person “A” may agree to forego seeking child support from person “B” if person “B’ were to forego seeking a payout from person “A” in exchange for their share of the equity held in a jointly owned property; however, by law, a person cannot waive child support as child support is considered to be the right of a child and not the right of the parent to which it is paid and as such person “A” could decide to seek child support from person “B” despite the fact that person “A” had previously decided to forego seeking their share of the equity held in the property in exchange for not having to pay child support; and
- If one separated spouse/partner agrees to purchase the other’s interest in a jointly owned property that is subject to a mortgage or line of credit or if even they wish to obtain financing with which to purchase a new property, in our experience, most financial institutions will refuse to approve that party for the necessary financing with which to do so unless they have entered into a Separation Agreement drafted by a lawyer.
To be clear, the legal expenses costs pertaining to the negotiation and/or drafting of a Separation Agreement are typically far, far less than those pertaining to court proceedings. If you and your spouse or common-law partner are separating and you either have come to a tentative agreement regarding the major issues arising from your separation or you believe that you may be able to do so, please contact our office to book a consultation. Please note that we are not able to meet with both you and your separated spouse or partner as we are only able to act for one of you.