Legally binding separation agreements are an important first step to your divorce. For a separation agreement document to be legally enforceable it must:
- Be in writing
- Have been entered into freely and without coercion
- Show that each party received independent legal advice about the effects of signing the agreement
If both parties can agree on how to settle custody, child support, spousal support, and property division, they can draft a Separation Agreement. Both parties should seek independent legal counsel and legal advice on this document. Having an agreed upon Separation Agreement can help you keep your divorce out of court.
What Should Be Included in a Separation Agreement?
In your separation agreement you should include the following:
- Date of separation
- Child custody and guardianship
- Parenting schedules
- Child support
- Spousal support
- Division of pensions, RRSPs, etc.
- Division of matrimonial property and debt or
- Division of common law property.
Is a Separation Agreement Enforceable?
In most cases, your Separation Agreement will be used as the foundation of your divorce agreement. However, the courts may refuse your Separation Agreement in the following situations:
- The terms of the agreement, such as the amount of child support, are not in the best interest of your children;
- A spouse has failed to disclose certain assets or liabilities; or
- The separation agreement is unconscionable, or grossly unfair.
Working with a family law lawyer on your marriage separation agreement will bring any potential issues to light before they compromise your separation agreement or your divorce.
What if We Can’t Agree on All Issues?
You do not need to agree on everything to have a Separation Agreement. Even if you only agree on one thing, documenting that one issue with the specifics of your separation will help you get the divorce process started.
Working with an experienced mediator and negotiator will help you reach a solution that is agreeable for both parties.