Difference between revisions of "Agreements after Separation"

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#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#If you are entering into an agreement that will resolve a legal problem, you must know how that agreement affects the rights you would have had if you had pressed on with a court proceeding.
#You must understand the obligations and rights you have under the agreement.
#You must understand the obligations and rights you have under the agreement.
#It stops either party from claiming, later on, that he or she didn't know what the agreement meant or that he or she was at a disadvantage because the other party's lawyer drafted the agreement.
#It stops either party from claiming, later on, that they didn't know what the agreement meant or that they were at a disadvantage because the other party's lawyer drafted the agreement.


After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if 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.
After each party has had independent legal advice about the agreement, they will sign the agreement in the presence of a witness if 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 themself.


Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."
Someone who witnesses an agreement does not become a party to that agreement and isn't responsible for seeing that the agreement is followed. The signature of a witness on an agreement merely says "I know Mr. Smith and I saw him sign the agreement."


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''.
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 their 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 that 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.
Normally, four separate original copies of a separation agreement are executed. This is so that 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.
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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 want and can arrive at any settlement you wish, be warned that you may find yourself settling for 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 may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.
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 want and can arrive at any settlement you wish, be warned that you may find yourself settling for 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 may be stuck with any agreement that you freely enter into, regardless of whether it's a good agreement or a bad one.


Call your lawyer before you sign or initial anything. This is what you're paying her for.
Call your lawyer before you sign or initial anything. This is what you're paying them for.


==Formal requirements of separation agreements==
==Formal requirements of separation agreements==
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*The parties must make full, complete and honest disclosure of their financial circumstances going into the agreement.
*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 then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*If one term of a separation agreement is void then, unless the agreement says otherwise, only that term will fail and the rest of the agreement will continue as a valid agreement that is binding on the parties.
*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.
*A separation agreement will not be considered to be invalid just because one party doesn't comply with a term of the agreement. You can't say the whole agreement has been broken because the other party didn't do something they were supposed to do.
*While the parties can later agree to do something different than what their agreement says about a particular issue, the remainder of the agreement will remain in force.
*While the parties can later 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 that 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 consider itself bound by an agreement that says a person will never have to pay child support.
Note that the courts will rarely if ever uphold an agreement that attempts to contract out of a statutory obligation. Child support, for example, is a positive, almost absolute, obligation a parent has toward their children. The court will not consider itself bound by an agreement that says a person will never have to pay child support.


==The possible subjects of a separation agreement==
==The possible subjects of a separation agreement==
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====Custody and access====
====Custody and access====


There are two basic types of custody available under the ''Divorce Act'': sole custody and joint custody. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.
There are two basic types of custody available under the ''Divorce Act'': ''sole custody'' and ''joint custody''. Sole custody is less common than it used to be, and is usually only appropriate where the parties are constantly at each other's throats or where one party is or expects to be absent from the child's life. Joint custody is far more common than sole custody. In this situation, both parents are custodians of the children and both have responsibility for making decisions about the children.


Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.
Joint custody has little to do with how much time the child spends with each parent. The child's time can be shared equally or almost equally, or the child can see a parent only on weekends, and the parents can still have joint custody.
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====Guardianship====
====Guardianship====


Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with his or her child isn't a guardian unless the parent "regularly cares" for the child.  
Under s. 39(1) of the ''[[Family Law Act]]'', a child's parents are usually the child's guardians as long as they have lived together during the child's life. These parents are guardians and don't need an order or an agreement to make them a guardian. A parent who has never lived with their child isn't a guardian unless the parent ''regularly cares'' for the child.  


Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not "regularly cared" for the child.) Someone who is not a parent can't be made a guardian by an agreement.
Under s. 50, only a parent can become the guardian of a child through an agreement with all of the child's guardians. (Of course, the only parents who would need to become a guardian in this way, are parents who aren't guardians to begin with — parents who have never lived with the child and have not regularly cared for the child.) Someone who is not a parent can't be made a guardian by an agreement.


====Parental responsibilities====
====Parental responsibilities====
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*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*a fixed length of time over which support will be paid, after which the payor will have no more responsibility to pay,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*an indefinite amount of time that support will be paid, with one or more dates set for spousal support to be reviewed,
*a series of graduated payments, so that the recipient receives a declining amount of support as he or she re-enters the work force,
*a series of graduated payments, so that the recipient receives a declining amount of support as they re-enter the work force,
*the termination of support if the recipient enters a new spousal relationship, or
*the termination of support if the recipient enters a new spousal relationship, or
*the payment of support in a single, lump sum.
*the payment of support in a single, lump sum.
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===The division of property and debt===
===The division of property and debt===


The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property he or she brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.
The ways that a separation agreement can deal with the division of family property and family debt are virtually unlimited. Under the ''[[Family Law Act]]'', each spouse is presumed to keep the property they brought into the relationship and share in the property bought during the relationship. The spouses are presumed to be each half responsible for any debt incurred during the relationship. However, you can make whatever other arrangements you want, as long as you both agree to those arrangements and they're reasonably fair.


When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes his or her income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].
When the division of property and debt are issues, it's often helpful to exchange Financial Statements. A Financial Statement, Form F8 of the [http://canlii.ca/t/8mcr Supreme Court Family Rules], is a helpful court form in which each party describes their income, assets, expenses and debts on oath or affirmation, like an affidavit. This form can be very useful for each spouse to get a clear idea of the family's financial situation before negotiations start. You can find links to and examples of a Financial Statement and other forms in [[Sample Supreme Court Forms (Family Law)|Supreme Court Forms & Examples]].


A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.
A separation agreement should talk about how debts will be managed. Separating couples typically pay out family debts by the sale of a shared asset where there's not enough cash to pay it out, which is usually how the mortgage on the family home gets paid out, or they can allocate a different share of the family property to compensate for a family debt that can't be paid out. When a debt won't be paid out, it's essential to do two things: allocate responsibility for the debt; and, provide that the party remaining responsible for the debt will protect the party from having to repay the debt.
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*not incur debts in the name of the other party,
*not incur debts in the name of the other party,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with his or her parents, family, friends, and future partners, and,
*not interfere with the personal life of the other party, including interfering with the other party's relationships with their parents, family, friends, and future partners, and,
*not molest, harass or annoy the other party.
*not molest, harass or annoy the other party.


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====Undisclosed assets====
====Undisclosed assets====


If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of his or her assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:
If you have even the slightest doubt that the other party hasn't been entirely forthcoming about the extent of their assets, a term governing undisclosed assets can be important. These sorts of terms usually provide that:


*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
*any property that wasn't disclosed when the agreement was executed will automatically be deemed to be owned equally by both parties,
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Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?
Separation agreements don't always contain special terms providing for the reconciliation of the parties and the resumption of their relationship. But if a couple does reconcile, what happens to their separation agreement? Does the agreement stay in force? What happens if the parties separate again?


The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a "full, final and conclusive settlement" of all issues arising from their relationship.
The general rule here comes from the common law. Without a specific clause preserving some or all of the terms of a separation agreement, the agreement will be void if the parties reconcile and resume their relationship and live as a couple. This rule was upheld in a 2003 decision of the Ontario Court of Appeal, ''[http://canlii.ca/t/5115 Sydor v. Sydor]'', 2003 CanLII 17626 (ON CA). In that case, the court held that unless a separation agreement contains a term to the effect that the agreement will survive reconciliation, the agreement will be void when the couple reconciles, notwithstanding a term of the agreement that it is a ''full, final and conclusive settlement'' of all issues arising from their relationship.


The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.
The upshot of all this is that if there's a chance that you and your spouse might get back together, and you want your separation agreement to survive your reconciliation, you must put a term to that effect in your separation agreement. Without it, your agreement may be worthless if you reconcile and the relationship breaks down again at some point afterwards.

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