Separation agreements are formal agreements entered into by both spouses that provide for the arrangements between parties upon separation or divorce. Such agreements include provisions regarding the division of property and set out the financial and support responsibilities of each spouse on an ongoing basis. Most courts prefer that spouses enter into a separation agreement as opposed to engaging in the family court system because the spouses are more capable of entering into an arrangement that will fulfill their needs than a Judge would be at ascertaining these needs and making an order that would meet them. Additionally, many couples enter into separation agreements because court proceedings can be expensive and time-consuming. Separation agreements also provide parties’ with a larger role in shaping their post-separation family. Separation agreements can resolve issues in a matter on a final or interim basis, depending on the needs and desires of the parties.
Each spouse is represented by separate legal counsel, who usually works together to draft and revise the separation agreement following discussions between the parties and/or their lawyers. If one spouse is not represented by legal counsel, that spouse must take the draft of the separation agreement to be reviewed by an independent lawyer prior to signing the agreement. One of the safeguards of a separation agreement is the Certificate of Independent Legal Advice, wherein each party’s lawyer signs off to indicate that they have provided their client with their objective legal opinion regarding the contents of the separation agreement. This is why each party requires a lawyer in order to execute a separation agreement.
If the parties are having difficulty coming to a consensus regarding any of the issues in the agreement, they may want to seek the assistance of a mediator, who can assist them in coming to a compromise. This can be done by the parties on their own, or with their counsel.
Once the spouses have agreed upon the final draft of the separation agreement, they must both sign the agreement in the presence of a witness. The witness must then sign the agreement to certify that the spouses both signed the agreement.
Disclosure of Financial Information
During the process of drafting a separation agreement, the spouses must disclose all financial information, including assets, debts, liabilities, and income, to the other spouse. Failure to do so can result in a court later setting aside the separation agreement. Additionally, this financial disclosure is required by the lawyers in order to formulate their objective, legal opinion in order to provide independent legal advice. It is impossible for a lawyer to comment on the fairness or desirability of an agreement without examining the other party’s financial circumstances.
Information Contained in a Separation Agreement
One of the benefits of a separation agreement is that it can be crafted to meet each family’s unique needs. However, some typical terms included in separation agreements are as follows:
- Date of separation
- Child custody information, including:
- Which spouse will have custody (meaning decision-making authority regarding the children)
- Where the children will live, or their “residence”
- Access arrangements, including not only the general access schedule but also provisions regarding holiday and vacation times
- Child support information, including:
- The amount of child support payable
- Duration of child support payments
- Timelines for the exchange of financial disclosure for future years
- Spousal support information, including:
- Which spouse will pay support
- Duration of support
- Amount of spousal support payments
- Whether support is waived
- Property division agreement, including:
- Who gets which assets
- Sale of property
- Who makes an equalization payment to whom and the quantum of the said payment
- Provisions regarding the matrimonial home (disposition and possession of same)
- Information regarding outstanding debts:
- List of current outstanding debts, including credit cards, loans, and mortgages
- Responsibility for each debt (i.e. which spouse will assume which debts)
- Information regarding debts incurred after separation but prior to final divorce decree
- Information about pensions and other retirement accounts
Failure to include any of the above information can result in one of the spouses later filing suit in court to resolve an issue related to the separation, as it was not covered in the agreement.