COLUMN: Separation agreements – the what, why, and how

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This column is submitted by Fall River Law.

So, what is a separation agreement?  On its face this seems like an easy answer.  It is a contract that a couple makes when they decide to separate, whether they were common law or married Generally, the separation agreement covers three main issues- where and how your kids will be raised in two separate homes, how to divide your stuff (both assets and debts) and is there going to be any money that changes hands regularly to help with expenses and raising the children.

The separation agreement is an alternative to a court order that you would receive if you had gone to court and a justice decided on these issues.   So there you have it, all tied up with a bow- my job here is done.

But is it?  The separation agreement is so much more than just a legal experience where you write down who gets what and then you are done.  It is one result of an emotional, economic, parental, community and mental journey that a person goes through after a separation.  

That journey can be hard, messy, happy, sad or all the above.  A relationship needs to be grieved, just like any other major loss, and it can be difficult to have an effective conversation with an ex-spouse to figure out what your lives are going to look like now.

You do not need a separation agreement; you and your ex-spouse can rely solely on informal agreements of how your lives will be reordered.  I would however advise that in many cases a separation agreement should be made since it offers several advantages:

  • A main advantage is in the face of any future disagreements, a separation agreement is like a rulebook, which can be referred to in times of disagreement.  When a separation agreement is registered with the court is can be enforced in the same way as a court order would be.
  • Another is that, if you are planning on finalizing a divorce (have to wait 1 year after the date of separation), the decisions of what your lives look like separate are already outlined in the separation agreement and so you are already a step ahead. 
  • An advantage of creating a separation agreement rather than going to court is that the couple is able to agree on parenting, property and spousal issues themselves compared to a judge making those decisions for you. 

You don’t have to get a separation agreement right away, in fact a lot of people wait a while to have that conversation until emotions are not so close to the surface, but again I would advise that you get a separation agreement.  So there’s the what, why and when you should get a separation agreement, now let’s get to the how.  You can draft a separation agreement on your own, however there are a few requirements for the agreement to be able to be registered at the court, so look out for that. 

Each party should get independent legal advice about the separation agreement, which means that each of you see see your own lawyer to review it and make sure that you each understand what you are agreeing to and the consequences of that.  One lawyer cannot act for both spouses, but one lawyer can write up the agreement and the other would just have to review with the other spouse. 

If later one spouse says that they didn’t want the agreement or challenges whether it should continue, a judge is significantly more likely to uphold the agreement where each party received independent legal advice.

As mentioned in my first video, the ideal would be a kitchen table discussion where each spouse has already received independent legal advice- and maybe get a lawyer to draft it so that all of the details of the contract can be covered.  However, in time of difficult emotions after a breakup, having productive conversations are not always easy or possible. 

Having a mediator or lawyers negotiating for you can help to facilitate these conversations for you to come to not only an agreement- but better and longer lasting ones. 

Collaborative family law and mediation are the only methods that are designed help you beyond the legal aspects of the separation agreement and get into the emotional, mental, economic, and community journeys that a person experiences after a separation. 

Depending on where you are in your journey you can choose the best route for you. 

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