September 1, 2022

How to do a Separation Agreement

What are they key pieces of a separation agreement.

If you can resolve your family issues outside of court, the goal is to get a Separation Agreement between yourself and your spouse.

There are 7 key areas to address in a Separation Agreement:

  1.  Parenting Decision Making
  2.  Parenting Time Schedule
  3.  Child Support
  4.  Spousal Support
  5.  Equalizing Assets (if married)
  6.  Addressing Joint assets (if not married)
  7.  Insurance (life and medical)

The very first thing you have to do in a Separation Agreement, if you want to have a contract a Court will support, is make full financial disclosure to your spouse. This means everything. Give them your income tax returns, your pay stubs, and if you were married, all your banking records as of your separation date, including the statements (not just the numbers written down on a paper). You need to give your spouse a value for your vehicle, your debts and if you have a company, all your business records. The disclosure needs to be for all significant assets. We are not saying you go and get your used TV valued, just the significant assets. However, that means if you have a huge collection of certain items, you had best get them appraised. If you have any evidence of assets you owned on the date of your marriage, you must give that too. On top of that, if you have any excluded items (gifts/inheritances/life insurance proceeds/money received for general damages) you need to disclose that as well. Ideally you do a sworn financial statement – see our other blogs on that.

Disclosure is your Job One.

Your Job Two is to start to consider how to discuss the list of items above with your spouse. To create a separation agreement, you first must have agreement with your spouse on the list of 7 things. If you do not have an agreement, do not waste your time trying to figure out how to write up a Separation Agreement. You are not ready for that yet. The agreement terms must come first.

If you are able to make and receive full financial disclosure, then you are ready to sit with your spouse and discuss the list of 7 items. If the emotions are running too high, then sitting together to discuss these things may not be so easy, or practical. You may need some help. To put it in sports/gaming terms, you need to level up. That means involving a professional. That often can be mediation. Mediation is a process where you and your spouse hire one neutral professional who will structure the discussion of the list of issues and help you get to a resolution. In family law, mediators are often lawyers. They are called comprehensive mediators, meaning they can cover off all the issues for you. Sometimes people only have a parenting issue that they need help with, so they can hire parenting mediators, who are typically not lawyers, but social workers. As parenting professionals, they are best suited to help with parenting issues (the basic schedule of time sharing/holidays, etc.). Often your comprehensive mediator can prepare a Separation Agreement for you, and then send you off to get independent legal advice.

If mediation may not work for you, then you may level up further and consider Collaborative Family Law as a process to get to an agreement. Collaborative divorce is an out-of-court private process that includes you both having lawyers, but those lawyers are settlement lawyers only. They are not allowed to go to court. They are only hired to help you get your Separation resolved. There are many associations in Ontario, and in all provinces of Canada who have collaboratively trained lawyers. Not every family lawyer in the phone book – or these days, on the internet, is a trained collaborative lawyer. You need to find an association of them first. For example, you can find them in Ottawa by searching “collaborative divorce association Ottawa” and the site will come up. You can also look through the Ontario Association of Collaborative Professionals site for all the associations throughout Ontario. If you use that process, your lawyers will prepare the Separation Agreement for you.

We have multiple blogs on the different areas in the list so you can go into those in more detail.

Once you have an agreement, it must be written down and has to be signed by each spouse with a witness. Ideally, you sign it in different places with different witnesses as the agreement has to be signed voluntarily. If you have a large burly threatening looking relative as the only witness and they’re clearly aligned with you, you are heading into treacherous waters with the agreement. The key components are full financial disclosure, a voluntary agreement by you both and you need to have it in writing and witnessed. Ideally, one or both of you get independent legal advice.

© 2022, FamilyLawAdvisor