It’s great when you and your spouse can negotiate the terms of a separation agreement together. Especially when there are children involved, you want to maintain a friendly working arrangement with the “other parent”. So the children are comfortable in both your homes. So that you can be pleasant at drop-off and pick-up times. So the kids are not pulled both ways by conflicting loyalties.
By all means, let your lawyer know what terms look good. But knowing the terms the two of you want, and actually writing your own separation agreement are two different things.
Oh sure: there are lots of draft separation agreements “out there”. You can probably borrow one from a friend. Or maybe find something on the Internet.
But the terms of your friend’s separation agreement may be completely different from your own needs. Maybe your friend didn’t have any kids. Maybe your friend was working full time and making the same income as his or her spouse, such that spousal support wasn’t really at issue. Maybe your friend didn’t have a pension, or RRSPs or a cottage or . . . . Maybe the separation agreement you found on the Internet was applicable to the laws of a completely different jurisdiction: Australia or the State of Texas or even elsewhere in Canada.
You are getting along with your spouse and you’d like to keep it that way. That means you want a separation agreement that won’t be “set aside” a few years down the road. As much as possible, you’d like some finality. You’d like to be able to count on your stream of income and your assets going forward, to build a new life for yourself.
In Ontario, the “formal requirements” of a separation agreement are pretty simple. It has to be written and signed and witnessed. That’s it. The legislation doesn’t even stipulate that it should be dated (although of course it should).
But self-drafted separation agreements get set aside all the time. They get set aside because one of the parties to the agreement later feels he or she was under duress or coercion. They get set aside because he or she feels that they didn’t get enough “property”: that is, not enough in the financial settlement (whether in real estate or other financial assets). Or the separation agreement gets set aside or varied because he or she feels not enough support is being paid: whether child support or spousal support.
The best assurance that your separation agreement won’t be set aside? Two things. First of all, it should be based upon complete sworn financial disclosure from each of you (with all the back-up to prove income and to prove assets: don’t ever guess about that). And secondly, it should be based upon independent legal advice for each of you. Each of you needs to know what your actual entitlements would be according to law.
“Independent legal advice” is not what’s meant by notarizing a separation agreement you’ve prepared yourself. “Notarizing” a document just means it’s an accurate copy of an original – or if the document is being used “out of province”, sworn to be true in the presence of a notary. Independent legal advice means a lawyer has looked at the numbers in the financial disclosure and advised you, independently of your spouse, about support and equalization of property and all the other issues (financial and non-financial) that should go into your separation agreement.
So please don’t be offended when a lawyer declines to “notarize” your self-prepared separation agreement. Notarizing that separation agreement doesn’t help you achieve what you want: an amicable and fair and final separation. So that the two of you can part ways and move on while (if you have kids) continuing to be the best possible parents in the future.
Can you notarize our separation agreement? Uh, no. Sorry.
Can you help me prepare sworn financial disclosure and advise me about the terms of a separation agreement, and prepare it, and sign a certificate of independent legal advice? Absolutely. We’d be glad to. And that’s the way it should be done: quickly, amicably and cost-effectively, to minimize your risk of an adversarial and expensive legal proceeding in the future.
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