Difference between revisions of "Agreements after Separation"

A separation agreement is contract which records a settlement of the issues which arose when a relationship ended. Unlike marriage and cohabitation agreements which are made when a relationship starts, separation agreements are made when the relationship is over. Separation agreements can be an effective and inexpensive way of concluding a settlement, however the terms of the agreement must be fair and the parties must be able to get along well enough to negotiate the deal and then implement it when it's done.

settle the matters between them out of court through negotiation or mediation, or through some other alternative process like arbitration or collaborative law;

have a judge decide what should happen, after spending a lot of money on lawyers and the litigation process; or,

give up and just walk away from the mess.

It almost always better to negotiate and settle a dispute than to litigate and resolve a dispute by trial. While a settlement usually gives neither party all of what they wished for, it will give them as much of what they asked for as possible. Litigation is stressful and expensive, offers no guarantees of success, and can be extraordinarily acrimonious. A negotiated settlement is less stressful, much cheaper, and gives the parties the best chance of not hating each other at the end of the process.

A couple can reach a settlement at any time, even after a law suit has started. Typically a settlement reached before litigation has begun is put into the form of a separation agreement. Settlements reached after the start of litigation can also be put into a separation agreement, but more typically the terms of such settlements are put into the form of a consent order, an order that both parties agree the judge should make.

Separation agreements can deal with almost any issue a couple faces, from who will keep the cats, to how the mortgage is paid out, to how the children's post-secondary education will be handled. They can also offer a lot more flexibility than court orders, as some terms that can be put into an agreement can't be put into a court order. Most importantly, separation agreements can be tailored to meet the specific needs and circumstances of each couple.

===Alternatives to Separation Agreements===

Settlement can be reached in a number of different ways before litigation has started: through negotiation, mediation, the collaborative law process or arbitration. Settlements reached this way are almost always recorded in the form of a separation agreement.

Settlements reached after litigation has started are generally only recorded as separation agreements if they are unusually complicated or if there are concerns about whether a term of the settlement can be put into a court order. Otherwise, a settlement of litigation will be recorded as minutes of settlement or a consent order.

Minutes of settlement are a written record of the settlement of a law suit. They are reached after a law suit has begun and are usually used to describe the terms of a future consent order, an order that both parties agreee the court should make. Both of the lawyers and each of the parties will sign the minutes of settlement; usually only the lawyers will sign the final consent order.

Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record a rather hasty settlement of the issues, a settlement which is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less all-inclusive than separation agreements. Even though they lack the same fine-tuning and comprehensive detail, minutes of settlement are just as binding upon the parties as a separation agreement would be: both are contracts and can be enforced as such.

be signed by both lawyers and by both parties, although the signatures of the parties isn't strictly necessary;

deal with each significant issue in a final manner; and,

be attached to the draft consent order submitted to the court for its approval.

A consent order is an order that both parties agree a judge should make. Consent orders are only appropriate if litigation has started. It is not necessary to have minutes of settlement done before a consent order is agreed to.

Consent orders have a unique advantage of their own, in that it is usually extremely difficult to vary an order pronounced by consent without a serious and unanticipated change in circumstances, and such orders are almost impossible to appeal.

Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married couples or common-law couples and deal with a large range of issues, from the care and control of children to the division of assets. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required.

People who are just parents and never married or cohabited may want a parenting agreement that talks about custody, guardianship and a parenting schedule. Couples who only need to deal with child support or spousal support may want a support agreement that deals with either or both issues. Couples who only need to resolve who keeps what property and which debts may want a simple property agreement.

Agreements like these can involve more people than a couple. Separated parents might sign a contact agreement with grandparents who want access to the their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money.

==Forming a Separation Agreement==

One party can suggest to the other that a separation agreement should be negotiated and drawn up at any time after a married or unmarried relationship has broken down. A separation agreement can be drawn up after a court action has been started or before one has even been considered. Such agreements are usually drafted before a court action has started, but there is nothing which prevents a couple from entering into such an agreement afterwards.

Regardless of whether an action has been started, the process is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship amongst themselves (and, hopefully, in consultation with their lawyers as well), and attempt to arrive at a resolution of each issue which is as satisfactory to both of them as possible. It is a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for the text of any agreement which might be reached.

The settlement process is a process of negotiation: each party has a pretty good idea of how they would like to see things settled, and then, following the exchange of these ideas, a compromise is reached which represents a blending of the two goals.

Once an agreement is reached, one of the parties will draw up a formal agreement and present it to the other party. This draft is carefully reviewed to ensure that it reflects the agreement that was reached, check whether anything was left out, and make sure that there are no other issues which need to be discussed and included.

(Drafting a separation agreement is something which requires a great deal of skill and an intimate knowledge of family law and contract law. While kits are available that can guide you in drafting an agreement, where the content of the agreement is anything less than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter. Drafting issues are briefly dealt with in the first chapter of this section, Family Agreements.)

Once both parties are content with the text of the agreement, they must each separately take the agreement to their respective lawyers — or to any lawyer, for that matter — for advice as to how the agreement affects their legal rights and the options they may have open to them if they do not execute the agreement. This is called getting "independent legal advice." This stage is critical for three reasons:

After each party has had independent legal advice about the agreement they will then execute the agreement in the presence of a witness, as long as they're still willing to do the deal. Normally, each party will execute the agreement before the lawyer who provided the independent legal advice, but anyone can witness a party's signature, as long as the witness isn't under the age of 19 and doesn't stand to benefit from the agreement. The witness will watch as the party signs the agreement, and the witness will then sign the agreement him- or herself.

If the parties had legal advice, the lawyer who gave the advice will usually also sign a certificate confirming that: the party received advice as to how the agreement affects his or her legal interests; the party understood the terms of the agreement; and, the party wasn't forced into making the agreement. This is usually called a Certificate of Independent Legal Advice.

Normally, four separate original copies of a separation agreement are executed. This is so the parties and their lawyers can each have an original copy of the agreement. Sometimes, an extra original copy is executed in case the agreement must be filed in court.

Nothing is quite as frustrating as finding out that a client has negotiated an inadequate or prejudicial agreement without the lawyer's input. While you, the client, are free to do as you will and can arrive at any agreement you wish, be warned that you may find yourself settling for extremely poor terms, compared to what your lawyer might have been able to negotiate for you or compared to the results you might have obtained at trial. Remember that you will be held to any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.

A separation agreement is a contract, in just the same way you have a contract with your employer, your landlord, or the company from which you lease your car. On the other hand, it is a special kind of agreement, different from commercial contracts, because it concerns family law issues which are also discussed in the Family Relations Act and the Divorce Act. As a result, the law dealing with separation agreements is a blend of statute law, the common law relating to family agreements, and certain parts of the law dealing with traditional commercial contracts.

The whole point of a separation agreement is that the agreement, just like a commercial contract, is expected to bind the parties and govern how they will relate to each from the moment the agreement is executed. As such, the agreement must be enforceable and it must withstand the scrutiny of the court, that is, it must be drafted in such a way and contain reasonably fair terms such that a court will uphold it if it is challenged. A separation agreement must therefore conform to certain basic rules, including the following:

A separation agreement must be set out in writing.

The agreement must be signed by each party and should be signed in the presence of a witness.

The parties cannot be under the age of majority or suffer from any other legal disability.

The agreement must clearly identify the parties and the nature of their rights and obligations to one another.

Certain principles of contract law will also apply to separation agreements, including the following:

The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.

If one term of a separation agreement is void, only that term will fail and the rest of the agreement will stand as a valid agreement.

A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement, that is, you can't say the whole agreement has been broken because the other party didn't do something he or she was supposed to do.

While the parties can agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.

Note that the courts will rarely — if ever — uphold an agreement which attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward his or her children. The court will not be bound by an agreement which provides that a party will never have to pay child support.

The potential subjects of a separation agreement are limited only by common sense and what the law will allow. That being said, it is always best to be as realistic as possible when drafting a separation agreement. Is a schedule of payments unrealistically difficult for one party? Will the children be able to adapt to a shared parenting arrangement? Are the parties' obligations to one another too complex? Are they too optimistic? Are they affordable? While it is best that all of the issues between the parties be dealt with in a separation agreement, the simpler an agreement is, the better it will usually work in real life.