Can I write my own Separation Agreement?

This article explains the importance of consulting a lawyer to ensure your agreement is legally valid, tailored to your unique circumstances, and prepared to address future issues effectively. Learn what goes into a proper separation agreement and why a professional review is essential.

What do I need to know to write my own agreement?

More than you may think.

We don’t recommend it. When you buy a used car, you hire a mechanic to do the inspection. You want an expert to look under the hood and confirm that everything is working correctly, nothing is missing and there are no significant issues with the car. You would not do the inspection yourself even if you had a guide you found online.

Same goes for a separation agreement. Using a template you found online to prepare your own separation agreement is like buying a used car without having a mechanic inspect it. There’s a very real risk that you end up with a lemon in both situations.

Consider your specific situation.

No two cars are identical, and neither are relationships. If you were married and had children, your separation agreement will look very different from a couple who were common law and did not have children.

If you copy a template you found online or someone else’s agreement, you run the risk that your agreement does not give you the legal result you want under the law, could be invalid, is missing something or has other major issues. What seems like a deal right now, may not be, once you end up at the mechanic’s with your car or in a court with your separation. Essentially, your agreement could be a lemon just as much as a used car could be.

Why you might want to get a lawyer involved?

Consulting a lawyer to advise you and prepare a separation agreement is like having a mechanic look under the hood. You want an agreement that holds up in court, matches the law and is properly done.

It does not mean it has to cost you a huge retainer. You are in charge of the legal services you use. You can ask for a quick review, and we can help you with that.

Ontario courts have set aside several separation agreements for not being valid. An agreement that does not reflect the law can be set aside. A court could set aside a separation agreement for many reasons, including failure to exchange enough information before signing, incorrect amounts of support, improper spousal support release and an unreasonable division of assets and/or debts. Yes, you can make your own agreements, even ones that are not good for you, however there are certain legal minimum requirements.

Who can get a separation agreement?

Only married and common law couples who have separated can sign a separation agreement in Ontario. Common law in Ontario means you have lived together for at least three years or have lived together in a relationship of some permanence and have a child together.

What goes into a separation agreement?

Short answer: it depends on your specific situation.

Long answer: everything, including parenting decisions, the schedule of time you each have with your children, monthly support, financial issues, property issues, debt issues, insurance, and dispute resolution process.

The contents of your separation agreement depend on your specific relationship. Are there children? Is there a home? Who owns the home? Is there a mortgage? Who keeps the home? Are there joint accounts? Does either spouse have a pension? All of these questions (and more) are essential to determining what will go into your separation agreement.

There is certain information and documents that spouses need to provide to each other before signing a separation agreement. The documents you need to provide are called financial disclosure. The type of documents you need to provide depends on your specific situation. These documents confirm your income, assets and debts.

If you were married, you will need to produce financial disclosure for three dates, the date you were married, the date you were separated and the current date. If you were common law, you only need to produce financial disclosure for the current date. How thoroughly you do this is important.

If you are an employee, your pay stubs, income tax returns and notices of assessment are to be provided for your income. If you are self-employed, there is significantly more documentation that you will need to provide. If your former spouse was self-employed, you need to be very cautious about what they declare as their income and should speak with a lawyer about their income.

Ontario family law takes a different approach to the definition of income than Canadian tax law. What does that mean? Well, for someone who is an employee on a salary, with no deductions (other than CPP, tax and EI) things are straightforward. The income on the taxes is the income used to figure out support.

The difficulty arises when someone has pension deductions, health insurance deductions, commissions, costs of employment or is self-employed or working for a family business. While Canadian tax law allows a self-employed person to expense things like a cell phone or vehicle expenses, Ontario family law treats some of these expenses as income when looking at support of children or your spouse.

In short, income can be complicated.

Your separation agreement should address the current situation and also prepare you to deal with issues in the future. For instance, if the schedule is to change as the child gets older, the agreement can outline the process of how you determine that new schedule. Essentially, you want an agreement that is both final on some things and adaptable on other things. Remember, you don’t want to end up with a lemon.

This article is a short summary of some of the more common issues that separated spouses face when trying to craft their own Separation Agreement. There is a lot we did not cover. If you have more questions and need help understanding how to get a valid separation agreement, we can help.  You are in charge of the amount of help you want – just book a consult for the time you want to buy. See “our services” for more.