Why Do I Need a Separation Agreement?

Today, we'll be discussing that why a separation agreement can be valuable, even in cases when both spouses are amicable.

Hello everyone, my name is Andrew Feldstein and I am the founding/managing partner of Feldstein Family Law Group. Today I will be discussing the significance of a Separation Agreement, even between two amicable and co-operative former spouses. That is, I will be discussing the need for a Separation Agreement regardless of how well you and your former partner get along after the decision to separate from one another.

A Separation Agreement is negotiated between the parties and can potentially settle all rights and obligations arising out of a common-law relationship or marriage. Former spouses are provided with the closest thing to certainty, finality, and closure by entering into a Separation Agreement. Furthermore, a Separation Agreement provides structure to the parties’ relationship moving forward, a period of time referred to as “post-separation”.

When parties choose not to enter into a Separation Agreement, or resolve the issues through the courts, after the breakdown of their relationship, many issues can linger on until a particular event occurs in the parties’ lives. Whether such event relate to the parties’ children attending college or university or one of the parties becoming unemployed, the absence of a Separation Agreement can lead to further issues between former spouses upon such an event occurring. Who is to pay for the expenses related to the child’s post-secondary education or in what proportion should each party contribute?

A greater concern may occur after a heated argument between former spouses where the children are left in the center of such conflict. Such a conflict may arise when one of the former spouses finds a new partner. Without a Separation Agreement in place, the other party may seek retroactive support. That is, they may request support dating back to the date of separation. Without any prior Separation Agreement, the party will have a further stressor when entering into this relationship with his/her new partner as they will do so without certainty or closure with respect to his/her past relationship.

Further, without entering into a Separation Agreement, the limitation periods will continue to “run”. If the parties choose not to enter into such an Agreement, claims such as that to an equalization payment and division of property may expire. In such cases, the vulnerable party becomes taken advantage of, regardless of the parties’ intentions upon separation.

Although a Separation Agreement may be viewed as unnecessary between two amicable former spouses, the lapse of time between separation and the resolution of lingering legal issues only creates further difficulty. The very time parties should choose to enter into a Separation Agreement is when they are amicable with one another. Instead of a back-and-forth between counsel, the parties can “hash-out” the major details together and have counsel draft the final Agreement. As such, proceeding to draft a Separation Agreement during a time where the parties are co-operative and amicable reduces the legal cost of negotiating an Agreement.

I can tell you recently, I was talking to a couple of people I know who advised me that they were getting along well with their former spouses and didn’t want to enter into a Separation Agreement. My advice to them was it is critical that they get an agreement. That way they know what their obligations are, they know what their rights are and I encouraged them to speak with a Family Law lawyer whether it was a lawyer at my firm or somewhere else. Because in my opinion, you need to have a Separation Agreement so you can understand your obligations, you can understand how you can plan for the future because until there is an agreement you truly can’t plan for the future.

If you have further questions regarding Separation Agreements, please visit our website. If you would like to speak with one our family law lawyers, please contact us for a consultation at (905) 581-7222. Thank you for listening.

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