Why Is It Important to Get Independent Legal Advice Before Signing a Separation Agreement?

 There are many reasons to get independent legal advice from family lawyer before signing a Separation Agreement. A few of those reasons are provided here below.



When you sign a separation agreement, you are not getting divorced, but you are essentially committing to a legally binding agreement that outlines how certain aspects of your relationship will be resolved. Such an agreement is binding whether or not it is made by a lawyer or filed with the court. You may be caught up in the emotional aspects of moving on and if you do not know the applicable law and what your rights and responsibilities and entitlements to are under the law, this can create a potentially hazardous situation legally speaking. If you find yourself in this situation, you should seriously consider obtaining the experience of a family law lawyer who practices daily in this area of the law.


To Ensure You Don’t Give Up Your Legal Rights

Usually a separation agreement is drafted with the input of each party’s lawyer. The Separation Agreement may address custody issues, support issues and/or division of family property and family debt issues. If you do not use a customized separation agreement hand drafted by your lawyer, there could be important clauses missing or unnecessary clauses added that you might not fully realize the significance of at the time you sign the agreement. Some aspects of the agreement might be too vague to be implemented or later require the interpretation of a judge. You will want to avoid any future controversy regarding the interpretation and meaning of the agreement so it is advisable to have it properly prepared by a lawyer at the outset.

For example, a standard clause provided in separation agreements prepared by lawyers relates to an annual exchange of financial disclosure. This clause stipulates when and what financial information must be provided to and from your ex-spouse, such as personal tax returns, personal tax notice of assessments, financial statements, insurance statements, business financial statements, etc. The rationale for annual information exchange is if there is a change in either party’s financial circumstances, child support is usually adjusted. The adjustment could be upwards or downwards.


To Avoid Giving More Than What’s Considered Fair Under the Law


When you are negotiating the division of family property, your lawyer can help protect your legal interests by ensuring there is a fair division. Your lawyer may flag factors such as sentimental value and market value and help you ensure you are not making emotionally charged decisions.

Your lawyer will also examine the spousal support advisory guidelines and child support guidelines and advise you about the recommended range of support in your circumstances, based on your age and income, your ex-spouse’s age and income, the duration of cohabitation, the number of children, the ages of the children, etc. Your lawyer will also consider whether to include a review date for support.

J.R.G.-S. v. J.A.S., 2011 BCSC 1612 (CanLII) is a case where spousal support was reviewed several times. The issues related to J.A.S.’s employability, health issues, and J.R.G.’s income. The spousal support amount was varied on multiple occasions, beginning in 1994 during the divorce, and concluding in 2011 with an increase based on cost of living and the health issues of J.A.S. The case illustrates how spousal support can be an ongoing issue long after separation and needs to be carefully considered in the Separation Agreement.


To Help You Get What Is Most Important to You


There may be aspects of your separation with personal meaning to you that your lawyer can help you achieve or advise you to abandon. For example, if you are attached to a particular  property or you continue to be the primary occupant of the matrimonial home, you may consider whether you can buy out your ex-spouse of the property.

If you and your ex-spouse disagree about child custody and access, then independent legal advice may be critical to obtain before the matter escalates. Zazula v. Zazula, 2016 BCSC 288 (CanLII) was a case where a child custody and access dispute resulted in the rapid deterioration of the parties’ relationship. As the proceedings became more acrimonious, the issues that dominated the custody battle were Mr.’s Zazula’s excessive marijuana use, his considerably lower income, and the merits of raising a child in various cities and communities. Together these issues added complications and increased the emotions in the case.


To Put Sufficient Details/Implementation Procedures In Place


You and your ex-spouse may agree on several matters in principle but have a dispute later if the details are not specified in the agreement. For example, you and your ex-spouse might agree on a 50/50 parenting schedule with your child and alternate weekends but what this looks like on any given day needs to be worked out. For example, where will the exchanges be when school is not in session? How are specific holidays divided? If a parent cannot take the child during his or her scheduled time, does the other parent get the first right of refusal or can the  grandparents care for the child instead? Can a parent who lost time with the child get make-up time? What happens if a parent wants to move out of the geographical area? These are just some examples of matters that are usually better to be addressed and incorporated into the separation agreement to avoid future disagreements.


To Reduce the Likelihood of Court


There are plenty of issues at stake during a separation that can become very expensive and time-consuming later if they are not handled correctly at the outset. To avoid the potential for court, you may consider an alternative dispute resolution mechanism in your agreement. For example, for financial matters, you may consider mediation or arbitration. For parenting issues, you may firstly consider parenting coordination, and if that is unsuccessful, then resort to mediation or arbitration. Any time you can avoid court usually means a more expeditious and cost-effective forum to resolve any disputes.


To Make The Agreement Enforceable


Before signing your separation agreement, you will want legal advice to ensure that neither party can advance a claim in future that the agreement is not valid and is unenforceable. The court will consider whether an objective reasonable member of the public would find that the parties intended to contract and had agreement on all essential terms. An agreement on property or spousal support can be set inside or varied if the result is unfair considering the factors outlines in Sections 63 and 164 of the Family Law Act. An agreement will not automatically be set aside because a party did not obtain independent legal advice. And if a party can establish a defect in the process of preparing the Separation Agreement, the court may not change the agreement if any Order it would make is not substantially different from the terms of the Separation Agreement. If a Certificate of Independent Legal Advice is exchanged, then this claim is less likely to occur. Further, before signing, your lawyer can review the entire agreement and also ensure there are no unenforceable clauses.


Speak to Valerie M. Little, Separation Agreement Lawyer


Professional legal advice is always advisable before you sign a legally binding contract. A separation lawyer will be able to advise you on issues that may not seem immediately obvious at first. If you can start your separation with a fair signed agreement that avoids fighting it out in court, both parties can save time money, energy and aggravation - both now and in the future. Help yourself in the long run by contacting Valerie M. Little. Our separation and divorce law firm can be reached at 604-526-3333.



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