Everything you need to know about Separation Agreements

person signing a separation agreement

Separations can easily get messy. There are many emotions at play which when heightened impact your ability to interpret communications leading to misunderstanding and poor decision-making. That is why you need to create a separation agreement. A separation agreement can help you plan out exactly what the future holds in regards to life after your split. It helps remove any uncertainty you may have and helps to resolve the conflict between you and your ex-partner at the same time. You could make a separation agreement yourself but remember that this is a document that may profoundly impact your future. This is why it’s important to work with a lawyer who specializes in separation and divorce. Doing so eliminates some of the stress and ensures your separation agreement will stand up long-term. The right divorce or separation professional will also help you navigate your separation with as much ease as is possible. It is never easy but it does not have to be a war.

But where do you even begin? How do you start the separation process?

Let’s start at the beginning.

What is a separation agreement?

A separation agreement outlines the terms of your separation settlement and the terms of your divorce. When created properly, these agreements outline a variety of permanent decisions between you and your ex. This includes everything from property division, child support, financial obligations, and parenting plans.

You should have a separation agreement made because it removes any uncertainty around the agreements you have reached together. Having everything laid out in writing will give you peace of mind and makes the separation process easier for all parties involved. You must work with a separation lawyer to make an agreement for you. If your relationship is amicable with your ex, you might be able to take advantage of our DIY separation services as well. Having a lawyer assist you while creating the agreement will ensure that if there are any future issues with your agreement, that the agreement will be legally enforceable. When choosing to separate from your partner, there are three different types of separations for you to consider:

  1. Trial Separation: If you and your partner need to spend time apart to help decide whether to move forward with a divorce,, you can opt for a trial separation. Think of a trial separation as a way to help you decide if you want to stay separated or stay together. With a trial separation, the same legal rules apply as when you are married, but you are living apart. All your shared assets and property are still jointly owned, but this opportunity gives you both a break to clear your head and decide on the next steps. Normally, we don’t create a separation agreement when there is a trial separation. One caution is that if you set up a status quo regarding the children, it may be difficult to change it after some time passes. For example, if you only have the children in your care every second weekend and you decide to permanently separate, you may have to live with seeing your children every second weekend. Changing a status quo can be difficult unless you can prove that it is not working for the children.
  2. Permanent Separation: A permanent separation is when you live apart from your spouse without any intention of reconciling, but you are not yet divorced. If there is no intention of reconciling with your partner, you will need to separate any shared assets and joint accounts.  Once you are permanently separated, any new debt your spouse acquires is no longer your responsibility. Any income that your spouse earns or property they buy, you are no longer entitled to any share of it after your separation is finalized. Often clients sign a separation agreement but don’t finalize it with a divorce for several years.
  3. Divorced: Being legally separated is different from being divorced. You are still considered married until the divorce is granted by a judge. Often people will remain separated without a divorce until they meet someone new who insists on the divorce is obtained. When you want finality, you will obtain a divorce immediately after the separation agreement is signed.

When should you make a separation agreement?

Once you have decided to separate from your partner, you should get an agreement made as soon as you can. The quicker you prepare the agreement, the faster and easier the separation process will be. Often issues arise if you drag out the process. On the other hand, if emotions are raw, sometimes it is best to delay the process until cooler heads prevail. Timing and pacing are important.

When you do decide to get a separation, you should immediately seek legal representation and work with a separation lawyer. They can review your situation, give you options and advice on the next steps, and can prepare an agreement for you that will be legally binding and enforceable.

Why not do a homemade agreement? 

We fix a lot of homemade agreements. Often they are not done properly and are not enforceable. It is significantly more costly to fix a poorly drafted agreement than to do it right from the start. Let us help you get it done properly so you are protected from future lawsuits and conflict.

How to choose a lawyer? 

When choosing the right separation lawyer for your case, be sure they have your best interests at heart. Also, be sure they are willing to help you in any way they can to keep you out of court. When a case goes to court, it can typically draw it out longer and it can be more costly in the long run. Some lawyers love going to court and take every client to Family Court. We believe this approach is unethical and disrespectful. We take clients to court who need a court. We help clients settle their cases when possible and appropriate.

What should your separation agreement include?

Every relationship is different. This is why every separation agreement is also different. Depending on your personal relationship, your separation agreement should consider the following:

  • Children: If you have children, how will financial support work? How will joint custody (now known as joint parenting time) work? Where will both parents live and how will this affect the relationship each parent has with the child? How much time with children spend with each of you? How will the holidays be divided? How will decisions be made?
  • Finances: If you have joint assets or bank accounts, how will they be divided? If there is any joint debt how will that be paid off? Will one person pay the other spousal support?
  • Property: If you own a house together, will the property be sold and divided? Or will one person keep the property while the other moves out? How will joint assets be divided?

Again, depending on your situation, there may be more or fewer issues for you to consider when creating a separation agreement. For it to hold up in court, your financial situation and parenting plan must be laid out clearly.

The bottom line

Separation agreements will affect the rest of your life. Not even just your life, but the life of your children as well. That is why you should work with a separation lawyer who can help you navigate your separation, and create a lasting, legally binding agreement.

If you are ready to move forward with your separation, work with one of our experienced separation lawyers at Galbraith Family Law. We are committed to resolving family conflicts with heart. From consultation to the finalization of your agreement, we are here for you each step of the way. We are also committed to doing whatever we can to help ease the process of your separation while keeping you out of court if possible with a collaborative approach. Give us a call at one of our five locations across Ontario today to get started or if you have questions. For our Toronto offices call 647-370-8965, for our Newmarket office call 289-210-4692 or you can reach us at our Barrie office at 705-230-2734.

Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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