When parties separate it is not always necessary to go to court. Most separated couples negotiate a separation agreement. A separation agreement is a domestic contract under the Family Law Act that can deal with all issues related to the breakdown of a relationship including custody, access, parenting, child and spousal support, and property division. For information related to each of these topic areas, please see my page "Information by Topic."
HOW CAN WE HELP?
We are skilled drafters and negotiators. We can review your particular situation during an initial consultation and provide you with specific advice regarding your options. We can also discuss expected costs during that meeting to give you a better idea of what may happen in your personal situation.
We can provide ILA for your agreement arrived at through mediation. If you have been to see a mediator, you may need independent legal advice on the content of any negotiated agreement. We offer services for providing mediation advice and coaching.
why have a separation agreement?
If there is a relationship breakdown the separation agreement sets out your rights and obligations following separation. This provides each of you with clear responsibilities and action items. Even if both parties are getting along well shortly after separation, in too many cases there is disagreement and confusion as time passes. Capturing your agreement while you are getting along is a great opportunity.
A properly drafted separation agreement will help you avoid disagreement or confusion about each party's obligations. It provides clarity and a specific road map to follow in terms of parenting and financial matters.
In the majority of cases where one party wishes to buy out the other party's interest in a home or property a separation agreement is needed to support the property transfer. Financial institutions providing mortgages or loans often need to see a signed separation agreement before they will advance funds. They want to verify the monthly support obligations and and ensure issues related to real property or investments have been settled, particularly if a transfer needs to be registered.
A properly drafted separation agreement is enforceable. The only thing a separation agreement cannot do is grant a divorce.
How do I make a separation agreement?
People come to a separation agreement in a variety of ways. In the majority of cases Separation Agreements are drafted by lawyers or mediators. Although not a complete list, the examples below include common approaches.
- Use lawyers to help negotiate and draft their separation agreement, with each party hiring his or her own lawyer. This is done through letter negotiations, four-way meetings, or through the collaborative law process.
- Use a mediator directly to help come to an agreement, and then go to lawyers for independent legal advice ("ILA"). ILA can be sought during mediation on specific issues, or at the end of a negotiated resolution.
- Use a mediator with both parties having a lawyer representative during the mediation, or mediation/arbitration.
- Negotiate an agreement between themselves, and then and one party retains a lawyer to have the agreement written up. The other party gets ILA or waives their right to ILA.
- Write up their own agreement. If you use this option, the agreement needs to be signed by both of you before a witness to be legally binding and enforceable as a separation agreement. Having two separate witnesses, one for each person, is highly recommended due to case law that has put into question the validity of only one witness.
is my separation agreement enforceable?
Provided the agreement is signed by both of you and witnessed, it is enforceable. The separation agreement can be filed with the Family Responsibility Office for collection of support obligations when needed.
In most cases Court is your least desirable option and should be avoided. Separation Agreements provide an enforceable alternative to a court order.
what is the expected cost of a separation agreement?
If you and your former spouse or partner have agreed to all the issues between you, you may only need a lawyer to formally draft it. This can often be done quickly and affordably.
Even if you need assistance negotiating, drafting, and enforcing your separation agreement, costs can be kept to under $2,000.00 in many cases.
Some lawyers offer flat fee separation agreements. I do not offer that service because I have found that the flat fee often results in a higher final cost than time-based billing. I find in particular that franchise models offering these services charge a much higher flat fee per person than would likely result from time-based billing, even with four-way meetings and negotiations.