Separation Agreement

 

Separation Agreement Lawyers in Duncan, BC

Calgary Divorce & Separation Agreement

When a relationship breaks down, feelings of uncertainty, confusion and stress are normal outcomes.

One way to bring some clarity to the future is to sit down with your ex-partner and work out a separation agreement.

However, that can be easier said than done. When emotions are still raw and the potential for disputes and confrontation high, it can be a real challenge to reason and negotiate with each other.

What are separation agreements?

Properly drawn-up separation agreements are legally binding family law contracts that act as roadmaps for a couple after they split up.

The agreement details the rights and obligations of each spouse as they transition to single life from married life and, importantly, what will happen to any children from the relationship.

Your separation agreement may follow certain guidelines but will be unique to you and your ex and, for that reason, considerable thought needs to go into it.

Being a legally enforceable document that the court will review before granting a divorce, it’s important to address all the key aspects of the separation. Most commonly, this includes child custody, parenting and living arrangements, support, and the division of property/debt but you may need to include other matters too.

The bottom line is that in the absence of a proper separation agreement, your divorce may end up in the courts with a judge making key decisions about the outstanding issues.

What are the requirements for a separation agreement in Duncan, BC?

British Columbia’s Family Law Act is very clear on separation agreements. They must be:

  1. In writing
  2. Signed by both spouses, and
  3. Witnessed

Each couple must make full financial disclosure before signing an agreement. You must declare all assets, property, investments, income, etc.

If it is discovered at a later date that other assets exist, it may invalidate the agreement and involve substantial costs to rectify the situation. The general requirements detailed above will create a legally enforceable separation agreement but it can run to 20-30 pages. Couples often struggle to cover everything required in the agreement without legal assistance.

What should your separation agreement include?

Following is a little more information about what a comprehensive separation agreement should include:

  • Child custody and support – the court will need to see details on who is to care for the children, what the visitation rights of the non-custodial parent are, and who will make decisions on behalf of the children. How will the child’s needs be supported financially, emotionally, and practically?
  • Property and debt division – what is the value of the marital property and how will it be divided equitably? Who is responsible for any outstanding debts payable at the time of separation or that may arise in the future?
  • Spousal Support – is there a case for one spouse to support the other financially during the transition to single life? If so, how much will be paid, how frequently, and for how long?
  • Divorce and associated fees – who may apply for divorce, who should pay for it, and what happens if disputes arise?
  • Estate issues – what happens when one of the spouses dies? Generally, the dead spouse is protected from having to bequeath part or all of the estate to the other spouse in the agreement.

Do you need a lawyer to create a separation agreement in BC?

Technically, you and your partner can prepare a separation agreement without the assistance of a family lawyer.

However, in reality, this is seldom attempted – and with good reason.

You have seen above how detailed a comprehensive separation agreement needs to be. Most couples do not have the time, legal expertise or state of mind during a separation to focus on the task at hand.

Besides, it is difficult to know whether the proposed terms are in your best interests or, instead, favour your partner.

A separation agreement may be referred to many times in the coming years, especially if you have young children. It’s important to get it right.

Significant consequences result from your decisions and, besides, the court will not approve an agreement that is not seen to be in the best interests of the children.

Put simply, the stakes are high and the process is much easier with the assistance of a family lawyer experienced in drafting separation agreements.

We can help you anticipate issues and address them in your agreement, ensuring that decisions are in your interests and legally enforceable. We can also protect you from claims that your partner was under duress to sign the agreement, which could invalidate it.

Your partner is likely to take independent legal advice before signing an agreement. It should be a priority for you too.

Will we have to go to court if we have a separation agreement?

Part of the reasoning behind drafting a separation agreement is to avoid the expense and delays involved with litigation. However, it does not end your marriage. For that, the BC Supreme Court must issue an order.

The litigation process is expensive, time-consuming, and stressful. If a separation agreement can be worked out around the kitchen table, a desk in a law firm’s office, or a mediator’s meeting room, this is preferable for most couples.

Provided that your separation agreement is drawn up correctly, there may be no need for a court appearance. The judge can review your document, approve it, and sign the divorce decree if everything is in order.

If, however, the judge is not happy with the contents of the agreement, the case may require a court hearing.

What are the main benefits of separation agreements?

In summary, the main benefits of a separation agreement are as follows:

  • No court appearance may be necessary
  • You save the costs and delays involved with litigation
  • Less stress for the children and you
  • You maintain control of the key outcomes, rather than a judge
  • Greater peace of mind, clarity, and direction for the future
  • A non-adversarial approach is preferable if you want to preserve a healthy relationship with your ex
  • It can protect your estate from future claims

Need assistance with your separation agreement?

At Jennings Family Law in Duncan, BC our divorce lawyers and mediators are committed to helping you achieve a prompt and cost-effective agreement with your spouse.

Contact us today for a confidential consultation and case evaluation.

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