Independent Legal Advice and Separation Agreements

with Shilpa Mehta

Please note: The script may not be exactly what is spoken, but contains the same information as presented in the video.

Hi, my name is Shilpa Mehta and I am a lawyer with Feldstein Family Law Group.

Today I am going to talk to you about the importance of getting Independent Legal Advice when you are negotiating the terms of a Separation Agreement with your spouse.

Often times I find that prospective clients come to our offices after they have separated and have amicably worked out the details of a Separation Agreement in collaboration with their spouse. At this stage, parties often mistakenly assume that both can meet with the same lawyer for the purposes of formalizing and executing their Agreement.

Both parties should meet with a different lawyer about the Separation Agreement. When you meet with your own lawyer to have your Agreement reviewed, this is called obtaining Independent Legal Advice. The same lawyer cannot be used to advise both parties as one lawyer cannot advise two people with potentially different interests.

Using the same lawyer could put the lawyer in a conflict of interest. Most importantly, using the same lawyer to provide advice to both parties is not in your best interest. You want a lawyer who will advocate for your rights.

When you meet with your lawyer, he or she will ask you for details regarding your matter and advise you about your legal rights and obligations flowing from your separation. Each party’s lawyer will review the Agreement and will explain whether the terms of same are in keeping with your legal entitlements and responsibilities and potentially suggest amendments to the draft Agreement.

If you and your spouse have each obtained Independent Legal Advice with respect to your Separation Agreement, this makes your Agreement much less vulnerable to being overturned or challenged later.

In the absence of Independent Legal Advice, one spouse may claim that they did not understand their rights or entitlements at the time of executing the Agreement.

Here’s the most important reason for consulting your own lawyer and executing Independent Legal Advice Certificates: to prevent either party from later claiming that he or she did not realize the consequences of, or even know what they were signing.

If your Separation Agreement is questioned in the future, you can be sure it will mean additional costs to you and perhaps delays. And uncertain outcomes. And stress, for sure.

Separation Agreements define your rights and obligations following your separation and therefore can have a serious and long-lasting impact on you. As such, I highly recommend that both parties seek advice of independent legal counsel when preparing your Separation Agreement to lessen the risk of the Agreement being set aside at some point in time in the future.

If you would like to learn more about Separation Agreements and Independent Legal Advice, visit our website at www.separation.ca. If you need legal advice about your own situation, please call us to schedule an initial consultation. Thanks for watching.