Henderson Heinrichs LLP

Why do I need a lawyer for a separation agreement if my ex and I have already agreed on everything?

Jonathan Song

Written by: Jonathan Song (View All Posts ) Published: January 6, 2017
Categorized: Agreements, Alberta, Contracts, Separation.

Not every separation is immediately conflict-ridden. A couple that is separating can sometimes discuss the issues of parenting, child support, spousal support (if any) and property division calmly and informally between themselves. They may even prepare their own written separation agreement based on some models from the internet. Yet when they go see a lawyer to have the agreement signed, the lawyer tells them that each of them should receive “independent legal advice” from their own lawyer before signing that agreement. Furthermore, that lawyer might also tell them that some amount of financial disclosure needs to be exchanged between both sides before that “independent legal advice” can be provided. The lawyer may even strongly suggest that parts or all of the agreement be rewritten or at least reworded. Naturally, that all involves legal fees. So why should you go see a lawyer to sign up a separation agreement if you and the ex have already figured out everything yourselves? Here are a few important reasons why it may be wise to consult a lawyer:

Your separation agreement is probably not binding without the two of you having received independent legal advice

A separation agreement is a contract and adults are free to make contracts about most things, and the court will generally assume that the parties to the contract knew what they were getting into. However, there are laws about contracts regarding separation that change that general rule.  For instance, for spousal support, para.62 of the Alberta Family Law Act states that the court can make an order that differs from an agreement on spousal support if the court thinks that the terms are very unfair and the person who wants the agreement changed signed it without receiving independent legal advice. For the division of property, para.38 of the Alberta Matrimonial Property Act says something very similar.

Independent Legal Advice

Independent legal advice is given when your lawyer tells you what the law probably entitles you to, given the facts of your situation. Therefore, before you can get that advice, the lawyer needs a certain amount of information about your relationship, particularly about the financial situation of each party. This exchange of financial disclosure does not always involve pulling up bank account records, credit card records, etc.  If each of you is confident in your knowledge of the other person’s financial situation, then financial disclosure would probably be complete if each side swore a statement laying out their approximate incomes, assets, and liabilities, and sent their sworn statement to the other side.

The idea is that if each side receives independent legal advice before signing, then they know if they are getting more or getting less than what they legally could get and  are making that decision knowingly.  Therefore, it would be very hard for them to have the agreement changed later.

Note that this does not mean that you should sign a separation agreement without independent legal advice thinking that, if it turns out to be a bad deal, that you can go to a lawyer to have the agreement breezily overturned. Getting a contract overturned usually requires going to trial which is costly and is scheduled at least several months in advance. In the meantime, the court may decide whether to allow the agreement to stand or not so you could be stuck with that bad agreement for at least several months and then pay a lot of money for a trial when you could have avoided that whole problem to begin with by hiring a lawyer to give you independent legal advice about your agreement draft.

Something important in your agreement might not be enforceable in a court of law

For example, if you have children, you and your ex might have made long-term parenting arrangements where you would have the child for so many years and then your ex would have the child for so many years.  The problem is that the court probably will not enforce such detailed long-term parenting arrangements. The court is supposed to consider the child’s best interest above all else which means that, if a parenting dispute comes up, the court is unlikely to give one person most of the time with the child just because, based on a separation agreement made in the past, that it was that person’s turn to have the child. This could be a big problem if one party agreed to certain other terms in the agreement (money issues, for example) in exchange for a parenting arrangement which turned out not to be enforceable.

Your bank might require that you sign in front of a lawyer and get independent legal advice

Many settlements of money issues require that one person refinance the mortgage to the matrimonial home in his or her own name and thereby raise the money to pay the other person whatever was agreed to by the parties. Banks often refuse to provide that refinancing if the separation agreement has not been signed in front of lawyers.

Your agreement might have problems with how it is to be implemented

Imagine that you and your ex agreed that within 30 days of both of you signing the separation agreement, that your ex would pay you $10,000 as a final settlement payment. Thirty days then pass and your ex does not pay you. You ask him for the money and he tells you that you can sue him for it or he can give you $7,000 and the two of you would call it even. A good lawyer could deter that kind of behaviour by having both sides contract that each side agrees to reimburse the other for their legal costs if one has to sue the other for that kind of thing.

The reasons above are only a sample of why it is well worth it to hire a lawyer to have a separation agreement done and signed even if you and your spouse are able to work out most or all of the terms yourselves.

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