Whether you are married or in a common-law relationship, you can make an agreement after you separate to deal with issues such as how to divide family property (assets and debts), child custody, parenting time (access issues), child support, and spousal support (also known as alimony). In fact, the majority of spouses do resolve the issues between them by way of a negotiated separation agreement.
Some spouses are able to agree on issues on their own but wonder if what they are agreeing to is fair. In other situations, spouses are so locked in a conflict that it seems impossible that they could agree on a single thing. Whether you and your spouse are amicable, unable to communicate, or somewhere in between, you need a trusted family lawyer on your side to explore settlement and negotiate an agreement that is fair and enforceable.
Things to consider when making an agreement after you separate
Think of your separation agreement as the road map for how you will move forward after separation and divorce. A well-drafted, thorough separation agreement sets out the details for how spouses will interact in the future and lays out a plan for dealing with issues if any should arise. It may be tempting to try to make an agreement on your own after you separate, but that could end up costing you time and money in the long run. Consider this:
Separation agreements in BC must meet certain requirements to be valid and enforceable. For example, the agreement must be in writing and signed by both parties in the presence of a witness. The agreement must be freely negotiated and signed without coercion or duress. If the agreement does not comply with family law requirements for separation agreements or was made in breach of general principles of contact law, it may be challenged and set aside by the courts.
BC family law is complex and involves an interplay between both provincial and federal legislation. If you do not understand the full scope of the law, you may inadvertently bargain away your rights, agree to give more than is fair or overlook important legal issues.
You will encounter problems if your agreement is not detailed enough or fails to set out a mechanism for resolving disputes. For example:
Spouses agree in principle on a parenting schedule but end up in constant dispute when it comes to implementing the schedule in day-to-day life because they didn’t address the specifics (e.g., How are school breaks and holidays to be shared? Does a parent get to make up missed time with the child? What does “liberal and generous” access mean?).
Spouses agree on the amount of spousal support but don’t agree on how long it is to be paid or when spousal support can be reviewed.
Parents agree on monthly child support but fail to agree on special or extraordinary expenses or do not put in place a mechanism for annual exchange of financial information to adjust the child support payable if income increases or decreases.
A separation agreement will only be fair if it is based on full and honest financial disclosure from both spouses. If one spouse lies about their income or assets, the agreement can later be challenged in court. If the separation agreement was negotiated without all the necessary financial information, it can be challenged and may be set aside by the courts, but only if the non-disclosure was significant – in other words, lack of disclosure is not necessarily a “get out of jail free card” and you may be stuck with an agreement that was not based on the full picture.
If you want to enter into a separation agreement, do it right the first time. The cost to prepare a separation agreement with the assistance of a family lawyer is considerably less than the expense of going to trial to resolve issues or having to go to court to challenge or defend a contested separation agreement (see here for our BC divorce lawyer’s discussion of when a separation agreement can be contested).
How a family lawyer helps when making an agreement after you separate
Protect yourself and your family by having an experienced lawyer on your side as you negotiate a separation agreement. Here are just some of the ways that a family lawyer will help you throughout the process to come to a clear and comprehensive separation agreement:
It is difficult to know the future or anticipate your needs, particularly when you are struggling after the separation to get your footing and establish a new normal for yourself and your children. A seasoned family lawyer can draw on their experience to highlight potential issues and ensure the agreement addresses contingencies and changes that may occur in the future.
A skilled family lawyer knows what financial documentation is needed and how to compel disclosure of these documents from your spouse if your spouse is not providing you with access to these documents and information (see here for our divorce lawyer’s discussion of the importance of full disclosure of income and assets in a family law case).
An agreement that is executed without the benefit of independent legal advice is at risk of being set aside by the courts.
Direct negotiation between spouses may be difficult or impossible if there has been abuse or power imbalances in the relationship. When you are represented by a family lawyer, the lawyer will handle communications (which will help diffuse intense emotions) and ensure that the process is fair.
Need help making a separation agreement? Talk to an experienced BC family lawyer!
If you need help with your separation and want an experienced family lawyer on your side as you navigate the process, contact Valerie M. Little at her office today. Protect yourself by putting Ms. Little’s 30 years of family law experience to work for you. Ms. Little's practice is exclusively devoted to issues of family law in Burnaby, Coquitlam, and New Westminster. At your free initial consultation, she can advise you on your unique family law circumstances and the implications of the law and help you devise your strategy. No matter what family law questions or issues you want to address, Ms. Little can guide you through negotiations to reach a clear and comprehensive separation agreement. Call our office at 604-526-3333.