Agreements after Separation: Difference between revisions
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|link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements] | |link = [http://www.clicklaw.bc.ca/global/search?k=separation%20agreements Separation Agreements] | ||
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A separation agreement is contract | A separation agreement is a contract that records a settlement of the issues which arise when a married or unmarried relationship ends. Unlike marriage and cohabitation agreements, which are made when a relationship starts, separation agreements are made when the relationship is over. | ||
This | Separation agreements can be an effective and inexpensive way of settling things. 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 put it into action it when it's done. | ||
This section provides an introduction to separation agreements, discusses how separation agreements are formed, and describles the legal requirements of separation agreements. It also looks at the typical subjects of separation agreements in some detail. In addition, it discusses the effect of reconciliation on separation agreements. | |||
==Introduction== | ==Introduction== | ||
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==Alternatives to separation agreements== | ==Alternatives to separation agreements== | ||
Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, the collaborative settlement processes or arbitration. Settlements reached | Settlement can be reached in a number of different ways before a court proceeding has started, through negotiation, mediation, the collaborative settlement processes, or arbitration. Settlements reached in these ways are almost always recorded in the form of a separation agreement. | ||
Settlements reached after a proceeding 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. | Settlements reached after a proceeding 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. | ||
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====Minutes of settlement==== | ====Minutes of settlement==== | ||
Minutes of settlement are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, an order that both parties agree 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 are a written record of the settlement of a court proceeding. They are reached after a court proceeding has begun and are usually used to describe the terms of a consent order, which is an order that both parties agree 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 an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. Even though they lack the same fine-tuning and 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. | Minutes of settlement sometimes have a rough-and-ready feel to them, as they are usually used to record an often hasty settlement of the legal issues, a settlement that is sometimes reached on the morning the trial is set to start. As a result, minutes of settlement are typically less comprehensive than separation agreements. Even though they lack the same fine-tuning and 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. | ||
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Minutes of settlement should: | Minutes of settlement should: | ||
#be signed by both lawyers and by both parties, although the | #be signed by both lawyers and by both parties, although the signature of the parties isn't strictly necessary, | ||
#deal with each significant issue in a final manner, and | #deal with each significant issue in a final manner, and | ||
#be attached to the draft consent order submitted to the court for its approval. | #be attached to the draft consent order submitted to the court for its approval. | ||
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===Other final agreements=== | ===Other final agreements=== | ||
Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt. Some couples may only have one issue to resolve and the usual sort of separation agreement isn't required. | Any dispute a couple has can be resolved by a formal contract of some nature. Separation agreements are usually signed by married spouses or unmarried spouses and deal with a large range of issues, from the care of children to the division of property and debt. | ||
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 parental responsibilities and the allocation of parenting time. 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. | People who are just parents and never married or cohabited may want a parenting agreement that talks about parental responsibilities and the allocation of parenting time. Couples who only need to deal with child support and/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 an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money. | Agreements like these can involve more people than a couple. Separated parents might sign an agreement for contact with grandparents who want to see their grandchildren. A separating couple might sign a loan agreement or promissory note with a friend or family member to whom they owe money. | ||
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===The basic process=== | ===The basic process=== | ||
The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship | The process for entering into a separation agreement is fairly simple. The parties discuss the issues resulting from the breakdown of their relationship between themselves (and, hopefully, in consultation with their lawyers as well). They attempt to reach a resolution of each of the legal issues that is as satisfactory to both of them as possible. It's a good idea to take notes and record how each issue is resolved, as these notes may wind up forming the basis for any agreement that might be reached. | ||
The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached | The settlement process is a process of negotiation: each party usually has a pretty good idea of how they would like to see things resolved, and then, following the exchange of these ideas, a compromise is reached that represents a blending of the two positions. Once settlement is reached, one of the parties will draw up a formal agreement and give it to the other party. This draft is carefully reviewed to ensure that it accurately reflects the agreement that was reached, to check whether anything was left out, and to make sure that there are no other issues that need to be discussed and included. | ||
Drafting a separation agreement is something | Drafting a separation agreement is something that requires a great deal of skill and a solid understanding of family law and contract law. While kits are available that can guide you in drafting an agreement, when the content of the agreement is anything other than completely straightforward, I highly recommend that you hire a lawyer to deal with the matter. | ||
Once both parties are content with the text of the agreement, they must each 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 don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons: | Once both parties are content with the text of the agreement, they must each 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 don't sign the agreement. This is called getting ''independent legal advice''. This stage is critical for three reasons: | ||
