What’s A Separation Agreement? Do I need one?

By: Darren Schmidt

We are family and divorce lawyers in Vernon, British Columbia and we can assist clients throughout the North Okanagan with divorce, separation, separation agreements, cohabitation agreements, marriage agreements, contested matters in court and all related family law issues that come along with the breakdown of a marriage or common law relationship.

Separation Agreements 101

You and your ex are separated.  You know that you need to resolve a bunch of legal issues now that your relationship is over – things like parenting time for your kids, child support, dividing property and debt, and even spousal support.  

There are two ways you are going to resolve those issues.  Either you and your ex are going to resolve those issues, or a third-party decision maker (i.e. a Judge) will do it for you.  

95% of all separating couples resolve the issues by agreement. 

The best way to make an agreement? … In writing!  Alas, the “separation agreement.”    

How do my ex and I make a Separation Agreement?

The key word here is “agreement.”  You and your ex have to agree on the resolution of all of the legal issues at play in your separation (parenting, child support, division of property and debt and spousal support).  You must negotiate with each other to land on how you both want to resolve those issues.  

Once negotiations are complete and you and your ex have come to terms on all the issues, someone needs to draft the separation agreement.  Here are some options:

• Buy the DIY separation kit at an office supply store;
• Download the free DIY separation agreement at “xyzlawstuff.com;”
• Get your college friend, who you think maybe did a pre law course in undergrad, to draft the agreement for you;
• You take a stab at drafting the separation agreement; or
• Get a lawyer to draft the separation agreement.

Why hire a lawyer to draft the Separation Agreement?

Your separation agreement is likely going to be the most important contract you ever sign.  It will determine how you will parent your kids.  It will direct how a large portion of your net worth is divided (likely over $1 million if you own a home and have a mortgage).  It will set out how much support you receive or pay on a monthly basis.  

If you think the DIY kit is good enough, buy it.  There’s nothing stopping you.  

However, if the agreement is poorly drafted, there are risks.  One common mistake is when the separating couple fails to adequately disclose the value of assets and debts.  If, after the agreement is signed, your ex is dissatisfied with how the assets were divided, they may challenge the validity of the agreement in court; arguing that there was insufficient financial disclosure when the agreement was made.  If the court sets aside the agreement, you’re right back at square one.  

A lawyer will take the time to ensure that the agreement is supported by sufficient financial disclosure and is drafted in a clear, easy-to-understand, manner.  In other words, they want the agreement to withstand any possible future challenge should it go in front of a judge. 

Flat Fees

We are happy to offer flat fee pricing for drafting separation agreements.  This includes the collection of personal information and financial disclosure, and the drafting of the agreement itself.  Once a final draft is approved by you and sent to your ex, or their lawyer, we bill the matter at our hourly rates.  We cannot guarantee your ex will sign the separation agreement as drafted.  Be we can provide certainty of price for the drafting and preparation of your separation agreement.   

If you have any questions about the divorce or separation process our Vernon family and divorce lawyers can assist you every step of the way. Kidston Helm Ross Lawyers LLP has been committed to quality service for our clients since 1904.
Feel free to contact us at 250-545-0711 or at kidston.ca .