Separation agreements are something that the lawyers at Hemminger Law Group Westshore have a lot of experience in negotiating and drafting. Many of our clients come to us with the goal to arrive at such an agreement with their spouse rather than ending up in court. We say that is an outstanding idea! A separation agreement is a legally binding contract between spouses that settles the issues between them after they separate. They can cover everything from parenting arrangements, to child and spousal support, to pension division and property division. In British Columbia the legislation used is the BC Family Law Act and the Divorce Act if people are married.
Although filing it is not strictly necessary, once filed, a separation agreement has the full force and effect of a court order. A divorce can also then proceed if the spouses separated more than a year ago.
We highly recommend that, if possible, our clients enter into such a legally binding contract.
One thing we see at Hemminger Law Group Westshore a lot are three avoidable common and costly mistakes. That is why we are writing this article. So you can avoid making the same mistakes.
Separation Agreements - The Top 3 Biggest Mistakes
Mistake #1 – Not Making Full Financial Disclosure
Even if you don’t want to share it, you have to disclose all of your assets when negotiating the terms of a separation agreement. The agreement is only binding if both parties make full and complete financial disclosure. If your spouse finds out down the road that you didn't mention that secret fat bank account, your separation agreement can be challenged and ultimately set aside by a judge. That is a huge risk and one we say that you do not want to take.
Mistake #2 – Not Getting Independent Legal Advice
To make your separation agreement legally binding, each spouse must receive independent legal advice from his or her separate lawyer. This does not mean that two lawyers need to be involved from start to finish in negotiating and drafting the agreement; rather, each party should at the very least have a sit down with a lawyer to review the terms of the agreement. Doing so, and having the lawyer sign a certificate of independent legal advice, is intended to show that each party understood his or her rights and obligations and signed the agreement without coercion or undue influence. It also makes sure the separation agreement is fair.
Having independent legal advice with respect to your separation agreement helps make sure it remains legally binding. We call it making your agreement "bullet-proof."
Mistake #3 – Using a “Do It Yourself Kit”
While using a “do it yourself” kit for your divorce or separation may seem like a cost-saving idea, we have often seen this idea backfire and our clients have ended up spending way more fixing a bad agreement than they would have if they hired a lawyer in the first place.
Now, this may seem self-serving. Because we are a law firm after all. It is also the case that it is a lawyer writing this article, and yes, we want your business. It is, however, still true. Some people want to save legal costs by using a kit or finding an agreement online. The problem with this approach is that these kits usually don't account for the legal subtleties involved in a lot of separations. Such agreements found online may not even be in accord with the Family Law Act of British Columbia (or your particular province or state). Having a lawyer assist with your agreement is a wise investment. It's an investment in knowing that if your spouse wants to challenge the agreement in the future, it will not be easy to do so.
We regularly meet with clients who didn't make this investment at the outset and ultimately end up in court, sometimes years after they believed all their issues with their ex-spouse were settled.
At Hemminger Law Group Westshore we are pleased to assist with the negotiation, drafting, or even just the simple review of your agreement.
By Val Hemminger, lawyer