Why Should you have a Separation Agreement?

There are at least three reasons why you should have a properly drafted Separation Agreement:

  1. Costs
  2. Time
  3. Finality

A family lawyer is expensive: clients would be lucky to find lawyers under $200/hour. If you meet the financial eligibility and criteria (which typically means that you have no income or that you receive social assistance), you may qualify for Legal Aid, in which case a legal aid lawyer will represent you, at no cost to you. This poses three problems:

1) Do you actually meet the criteria to qualify for Legal Aid?

2) When will you find a legal aid lawyer willing to take your case?

3) Having a legal aid lawyer does not guarantee that you will receive funding to pay the lawyer for each step of the case and you may even be refused legal aid if the case is set down for trial.

Legal Aid aside, the costs you will be facing should you hire a family lawyer for court proceedings may amount to paying a mortgage, on the lower side of the cost spectrum, and to the cost of refurnishing your house each month, on the higher side of the cost spectrum.

And then, there is the other option: not hiring a lawyer at all. This presents zero legal costs, especially if you and your spouse figure that you can solve your problems amicably. While the legal costs are low at the present time, this may actually cost you in several ways, adding to the time both parties spend on this, and defeating the main goal of a Separation Agreement, which is that of finality.

What are some of the typical downfalls of not having a properly drafted Separation Agreement?

  • It could be that your spouse has a change of heart down the line. It is very likely that:
    • You did not comply with the legal requirements of a separation agreement
    • One of you did not understand the nature or consequences of what you were signing
    • You failed to provide proper financial disclosure
    • It also opens up the gates to arguments of undue influence, unconscionability, non est factum, duress, mistake, misrepresentation and repudiation, which are contract law grounds for setting aside a contract.
  • You did not define all terms properly. For example, your spouse agreed to let you have the kids during March break. Did you define March break? Does it include weekends? When are the kids picked up and dropped off? This is one example far too common.
  • A material change of circumstances may occur. For example, your spouse’s salary decreases. This is grounds for your spouse to make a motion to the court to change the Separation Agreement. Although not all material change of circumstances can be foreseen, a properly drafted Separation Agreement can address such changes.

This is not to say that a Separation Agreement cannot be costly. Sometimes, negotiation alone can result in high costs and a properly drafted Separation Agreement might also be subject to change. It is up to you to do a cost-benefit analysis: if you are uncertain, expending a limited retainer for a legal consultation gives you the opportunity to make an informed decision.

**The content on this website is not legal advice.