A Separation Agreement is made at a specific time. Usually, a Separation Agreement is intended to deal with issues for years to come. However, life is always changing. People move away, enter new relationships and change careers. Income goes up and down. Children get older and their needs and activities change over time.
What you agreed to at the end of your relationship may no longer reflect the current reality. Can a Separation Agreement be changed if your circumstances have changed? The answer is yes.
Can a Separation Agreement Be Changed or Enforced or Challenged?
Separation Agreements should be fair, workable and followed by both parties. Where that is not the case, there are options for resolution. How you proceed depends on the issue at stake:
If you are satisfied with an existing agreement but your former spouse refuses to follow it or breaches its terms, you can take steps to enforce a Separation Agreement. See here for our family lawyer’s post on enforcing BC Separation Agreements.
If you have concerns about the validity of an agreement, you may be able to contest or challenge a Separation Agreement. However, as we recently discussed, BC courts are reluctant to interfere with privately negotiated contracts, and will only intervene to “set aside” a Separation Agreement in limited circumstances. For example, one spouse did not understand the agreement, the agreement is significantly unfair or the agreement is the product of coercion or undue influence.
If the circumstances of you, your former partner, or your children have changed since the existing agreement was signed, there are ways to change a Separation Agreement. See below for some key information on changing a Separation Agreement. Please do not hesitate to reach out to our family lawyer for more information or legal advice tailored to your situation.
Ways to Change an Existing Separation Agreement
If your Separation Agreement needs to be changed or if an unexpected family law issue arises that is not dealt with in your existing Separation Agreement, you can:
make an “amending agreement” or an “addendum” to add to or modify parts of your existing agreement. An example of an amending agreement would be an agreement that changes only the spousal support provisions of the existing agreement while all other terms of the original Separation Agreement remain the same;
make a new Separation Agreement to replace your existing agreement in its entirety; or,
start a court action in court.
In relation to the final option in the list, if you and your former spouse are not able to reach an agreement on the necessary changes, you can apply to the court. You will need to provide evidence to convince the court that it should order the changes you are requesting be made. The legal test you will have to meet to obtain an order depends on the issue in the agreement you are seeking to change.
It could be relocation, spousal support, child support, section 7 expenses such as paying for your child’s education or medical expenses, or parenting arrangements for your children. The best course of action is to get legal advice before proceeding to family court to change a Separation Agreement.
Need to Change Your Separation Agreement? Issues to Consider
Read your existing agreement carefully and get legal advice if you need help understanding what it says or how it operates. The answer may exist within the terms of your original agreement without the need for a new or amending agreement or a family court action.
Does your existing agreement specify how future changes must be made? For example, many Separation Agreements contain a clause which states that any changes must be made in writing, signed by both parties and witnessed.
Is there a “dispute resolution” provision in your existing agreement? The agreement may require that you and your former spouse go to mediation before going to court.
It is generally true that a family court action is more complicated and more expensive than making a mutual agreement without resort to the courts. It is also true that going to court requires you to hand over power to an independent judge to make a decision that will affect your life. Odds are, you entered a Separation Agreement in the first place because you recognize these truisms. Consider having an experienced family lawyer help you negotiate with your former partner and explore alternative dispute resolution options before resorting to family court.
Make sure you understand your rights and obligations before signing an amending agreement or new Separation Agreement. Your failure to obtain legal advice does not give you an automatic right to have the judge change all or part of the Agreement.
Get Trusted Legal Advice If You Need to Change or Enforce a Separation Agreement
If you have a Separation Agreement that needs to be changed or enforced, contact Valerie M. Little Law Corporation. Ms. Little has over 30 years experience in negotiating, challenging, defending and enforcing Separation Agreements. Protect yourself and your family and put Ms. Little’s extensive family law experience to work for you by calling her today at 604-526-3333 to schedule your private and confidential consultation.