Independent Legal Advice – do I need it?

What is independent legal advice and why should you have it?

What is Independent Legal Advice in family law?

Independent legal advice in a family law case means advice from a lawyer on your rights and responsibilities under the law. It is a lawyer who has no relation to you or the other party. This means you cannot get the same lawyer as your former spouse.

Do not think if another lawyer prepared the document, whether an agreement or a court document, that the lawyer would act for your former spouse and you. They are not allowed to do that. The other lawyer can only represent their own client’s interests.

You can get independent advice from a lawyer on any part of a family law case (at a Case Conference, a Settlement conference or before a Motion) and you can get independent advice on a Separation Agreement if someone has given you one to review and sign. This can often happen if you go to mediation and the mediator has prepared an agreement, or if your former spouse wrote an agreement with their lawyer and they want you to review and sign it.

Why should I get independent legal advice?

By hiring a lawyer to give you independent legal advice, you are protecting your interests by ensuring that you are fully informed on your rights and responsibilities under the law. Without independent legal advice, you do not know if you are getting what you are entitled to, if you are losing out on something, or if the document is enforceable.

If it is a separation agreement, a court could set the agreement aside.

An agreement can be set aside by a court for many different reasons. Common reasons include a failure to disclose significant assets or debts or an agreement not following the law. Providing full financial disclosure enables your lawyer to be able to advise whether the agreement reflects the law and providing your disclosure to his former spouse protects you.

If your former spouse tries to take you to court to get the agreement set aside, where you have provided your full financial disclosure and had independent legal advice to ensure the agreement reflects the law, it can be an uphill battle for your former spouse to get the agreement set aside.

It can be very expensive to try to correct issues with a signed separation agreement. Speaking to a lawyer before signing an agreement can save you money in the long run. An ounce of prevention is worth a pound of cure as they say. A lawyer giving you independent legal advice will advise you on whether your agreement reflects the law and any changes that should be made before you sign.

How do I get Independent Legal Advice?

You need to hire a lawyer who works in family law.

Your lawyer will need documents showing your income, assets, and debts if there are money issues in your document. The documents you need to provide will depend on your specific situation and whether you are married or not. Your lawyer may also need documents from your former spouse.

It is like a puzzle. You need all the pieces to complete the puzzle. A lawyer needs all the pieces (information) to give you comprehensive advice. Missing pieces mean the advice you receive or the agreement itself could be missing critical information.

You want to get complete legal advice, so be thorough in providing the documents that are requested of you. Your lawyer’s ability to advise you depends on the information you provide.

What is a certificate of independent legal advice?

A certificate of independent legal advice is part of a separation agreement. You do not sign the certificate of independent legal advice. The lawyer who gave you independent legal advice signs it. Just because you consulted a lawyer and got advice does not mean that the lawyer will sign a certificate of independent legal advice.

A certificate of independent legal advice applies to the entire separation agreement. Your rights and responsibilities under the law depend on your specific situation, which is why your lawyer needs information and documents from you. Your lawyer cannot advise you on the whole agreement without having the data to be able to advise you on your rights and responsibilities under the law. Your lawyer needs that data to be able to advise you and sign a certificate of independent legal advice.

What is a waiver of independent legal advice?

This means you waive your right to get advice. You cannot be forced to get legal advice. However, you should not sign an agreement or court document without getting legal advice. You may be thinking you will just sign a document to “get it over with”. That feeling is often short-lived.

By signing without legal advice, you risk getting less than you were entitled to, agreeing to terms that cannot be enforced or having the agreement set aside for not being within the law. If your agreement does have any of these issues, it could be very expensive to correct them later. Even if you only have a brief chat with a lawyer, it can help you understand what you are about to do. Give us a call and we can help you.