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Many spouses going through a separation opt to avoid costly litigation processes by settling their matters outside of court. One way to do this is by entering into a separation agreement which is a written contract that outlines how you and your former partner will resolve issues such as parenting, property, and support. For more information regarding the contents and functionality of separation agreements, see our article: The Anatomy of a Separation Agreement.
There is no legal requirement forcing a party to retain a lawyer for their separation agreement, however retaining a lawyer is highly recommended. Online templates, DIY kits, and artificial intelligence, are becoming more widely accessible and seem like cost-effective alternatives to retaining a family lawyer. The reality is that there are certain risks associated with executing a separation agreement, and if they are not drafted properly, these kinds of shortcuts can lead to serious, costly consequences down the road.
Risks of a DIY Separation Agreement
One risk of preparing a separation agreement without independent legal advice is that it may lack the formal requirements to make it a valid and binding agreement. In Ontario, section 55(1) of the Family Law Act outlines the required elements of a domestic contract (including a separation agreement). These include that the separation agreement must be made in writing, signed by the parties, and witnessed. If even just one element is missing, a court may set the agreement aside, rendering it unenforceable. This can happen even years after the agreement has been executed.
Another risk is that important financial information may be missed. Without formal financial disclosure rules, spouses may forget to include or purposely hide valuable assets. This is especially critical if one spouse controls all the finances or there is a financial power imbalance between the parties.
Most importantly, a DIY agreement puts you at risk of unknowingly giving up important rights. Without consulting a lawyer, it can be difficult to know your rights. Separation agreements have precise wording for a good reason; they are meant to be specific to your family’s needs. Generic clauses and language can result in you mistakenly waiving rights to relief you are entitled to such as spousal support, property equalization, or pension division.
Benefits of Independent Legal Advice
Consulting a lawyer before signing a separation agreement is an important step that allows you to better understand your rights, risks, and obligations. A family lawyer will be able to explain clauses and terms in your separation agreement in plain language so that you know how they affect your future.
Independent legal advice also ensures that an agreement was made voluntarily and without coercion. This is an important factor in determining an agreement’s legal standing. Since courts are more likely to uphold a separation agreement whereby each of the parties received independent legal advice, you can have confidence that you are well-protected by a valid separation agreement.
Importantly, the facts and circumstances of every family law matter are different. A family lawyer can likely appreciate the nuances of your case more than the standard “one-size-fits-all” approach of the DIY kits and templates. The more complex your matter is, the higher the risk is that a DIY agreement will be insufficient. It may not be worth it to “save costs” up front if it means spending thousands of dollars later to resolve issues arising from a DIY agreement. Family lawyers at Feldstein Family Law Group can assist you in negotiating, drafting, and reviewing your separation to ensure that they are fair, enforceable, and specific to your needs.