Separation Agreements: Don’t Leave Your Relationship Without One!
After I successfully help my client enter into a separation agreement and obtain a divorce order, my job as a family and divorce lawyer is often done. How did the client start the process? Frequently, the client has consulted me for pre-separation advice over the past few years because their common law marriage or civil marriage is breaking down and the couple is seeking the help of marriage counselors. Then the client advises me that they finally told their spouse that the relationship has ended for them and that they want to continue to have a good relationship because it is in the best interests of the children and because they don’t want to have a costly divorce settlement.
The focus then turns to negotiating a separation agreement between the parties. A separation agreement is contract which records a settlement of the issues which arose when the spouses’ relationship ended. Separation agreements can be an effective and inexpensive way of concluding a settlement. The key is that the parties must be able to get along well enough to negotiate the deal and implement the terms of the separation agreement when it is completed. The spouses must have a basic level of mutual trust and respect and be able to dialogue without letting their anger, jealousy or stubbornness dictate their decision making capabilities.
It is almost always better to negotiate and settle a family law dispute than to litigate and resolve a dispute by court orders and by a trial. Negotiating frequently gives both spouses most of what of they asked for in the settlement. Litigation is stressful and very expensive, offers no guarantee of success, and damages the mental health of the children. A negotiated settlement is less stressful, much cheaper, allow the spouses to control the process, and give the spouses the best chance of not hating each other at the end of the process.
One of the first hurdles is for the spouses to decide is who is going to remain in the family home and for how long? What happens when a spouse decides to remain in the house and the other spouse agrees to hold off on the sale or transfer for a period of time whether it is a year, 5 years or when the youngest child completes secondary school? This contractual term drafted in the separation agreement can appear simple, however, in practice it can be challenging. Cooperation between the spouses is essential to make this contractual term work in the short and long term.
Separation agreements can deal with any issue the spouses are facing, from who stays in the house, how the mortgage is paid out, the child support payment schedule, the parenting arrangements including parenting responsibilities and parenting time, how the children’s post-secondary education will be funded and how the assets and debts will be divided up. Separation agreements offer a great deal more flexibility and creativity than court orders, because some terms that can be put into an agreement cannot be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of the couple.
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