What is a Separation Agreement?

A separation agreement is a vital document within the divorce process. The separation agreement details the terms a couple has agreed upon in relation to their divorce. While the document 

does not actually end a couple’s marriage, it contains within it terms related to parenting, support, property division, financial releases and others. The process of drafting a separation agreement is best done in conjunction with independent legal advice, in order that each spouse should understand their personal legal rights and obligations.

Why Should a Couple Draft a Separation Agreement?

A separation agreement provides documented proof of any decisions divorcing spouses have made with one another. Over time, if circumstances arise where either party stops respecting terms that were formerly agreed upon, the agreement precludes their ability to renege on those terms. As a signed and witnessed document, a separation agreement forms a legally binding contract.

What Information is Included in a Separation Agreement?

Included within it are dates of importance to the couple’s history, as well as a detailed account of all arrangements that have been made by a couple with regard to custody, parenting time, support, property division and financial releases. There are also terms regarding periodic reassessment of the agreement and how the two will choose to go about renegotiating any necessary terms.

When Will I Need to Reference the Separation Agreement?

Circumstances may arise periodically where proof of a couple’s divorce terms is required. This may be the case where joint property ownership survives the divorce, or if there are financial accounts that create ongoing ties, such as RRSPs, pensions, etc. More often, you might be required to provide your document in cases where there are children involved, as proof of parenting terms or when travelling across international borders.

When Should a Separation Agreement Be Drafted?

It is recommended that the process be initiated as soon as possible upon marital breakdown. The process of defining its terms often takes a significant amount of time. A completed agreement provides closure to two former spouses as they navigate the new circumstances of their lives.

How Do I Draft a Separation Agreement?

A separation agreement is best drafted by a lawyer, with each party receiving independent legal advice from their own legal counsel. There are many detailed decisions to be made in the process of a divorce and acquiring independent legal advice ensures that each party is made aware of his or her legal rights and responsibilities.

Terms might be negotiated in any number of ways. They may be negotiated informally. They might be worked out in the context of a a dispute resolution process such as mediation. In circumstances where a couple has been through the court process any judicially ordered terms will be incorporated as well.

Do I Have to File My Separation Agreement in Court for it to Become Legally Binding?

No. A separation agreement becomes legally binding once it has been signed upon by both of the parties to the agreement, and has been signed by witnesses to the parties’ signatures. You may choose to file it in court, but this is not required to create its status as a legally binding contract.

If an individual is looking to have the Family Responsibility Office collect support payments on their behalf, the separation agreement will have to be filed with either the Ontario Court of Justice or the Family Branch of the Superior Court of Justice.

Are There Less Expensive Alternatives for Drafting a Separation Agreement?

While ‘do it yourself’ kits do exist, they are to be utilized with caution. Without education and experience in family law, individuals are likely to make misinformed decisions that will have significant ramifications, and are time consuming and expensive to correct down the line. At the very least, it is always advisable to seek independent legal guidance and advice prior to signing on any legal document.

Are you seeking support in determining the terms of your own separation agreement? To set up a complimentary consultation, contact us here.

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