'HOME-MADE' SEPARATION AGREEMENTS
Practicing in Family law, we periodically come across clients who have made their own ‘home-made’ Separation Agreement. It may be from a kit they purchased, a template they downloaded from the internet, it may be based on a friend’s Separation Agreement or it may be something they made on their own from scratch. There are so many ways these documents can go wrong.
One of the more common problems we see is where the wording of the agreement is not correct or not sufficient enough to achieve the client’s goals. Each and every separation has unique circumstances that need to be taken into account when drafting an agreement, such as division of property, parenting, child support, spousal support and more.
Parenting arrangements can vary widely – and what works for one family (or what you find in a template) may not work for your family. Where a child resides and how often they see each parent are very important issues – ones that should be customized for each family based on work and school schedules, holiday traditions of each parent, children's activities and so on.
A skilled family lawyer can make the wording in the Separation Agreement as clear as possible, so there is less ambiguity. When parents fight or disagree about parenting, ambiguity can sometimes be exploited by one parent. A common clause we have seen in home-made agreements is ‘The parties will share the children’s holidays’. What does that actually mean? Which holidays will be shared? How much time will each parent receive on each holiday? What if they can’t agree? These kinds of questions can be resolved by good drafting.
A poorly written Separation Agreement, on the other hand, can often result in the parents having to go to Family Court to resolve the ambiguity in the document.
When a home made agreement deals with Child Support, Spousal Support or Property Division, the potential for problems is even greater – because of the complexity of these issues.
We have seen home-made Separation Agreements that were trying to address the matrimonial home, for example the clause may say: “Party A will purchase Party B’s interest in the home”. But this clause does not give us any details – how much will Party A purchase it for? When does the purchase have to close by? What happens to the mortgages or debts secured against the home? Who is responsible for them going forward? Who will bear the cost of the transfer? These kinds of omissions can lead to a Separation Agreement that is essentially worthless or leads to unnecessary Court litigation.
Beyond these basic problems of drafting, there are other major concerns with constructing your own Separation Agreement. Often in these 'kitchen table' scenarios, neither party obtains legal advice on the agreement and neither makes financial disclosure to the other.
One of the key concepts in family law is making an informed decision. Without having disclosure of the other party’s finances, you won’t necessarily know what your entitlements are. For example, you can’t calculate the correct amount of child support owed if you don’t know the payor’s income. Likewise, it’s important to have a legal expert explain the content of an agreement to you before you sign – so that you have an appreciation of what the agreement really means and the obligations it places on you.
The law recognizes these concerns and this is why the Ontario Family Law Act allows for an agreement to actually be set aside when certain criteria are met. If a party has failed to disclose to the other significant assets or debts, if a party did not understand the nature or consequences of the agreement, and in some other circumstances, the Court can set aside the Separation Agreement the parties made.
The result is that home-made Separation Agreements are routinely challenged in Court and set aside because one or both parties did not make financial disclosure or did not have legal advice before signing their agreement.
For many families this can be a compounding of problems – first the emotional impact of the separation itself, then having to negotiate terms of a home-made Agreement, only to have one party drag the other into a potentially complex and lengthy Court battle over whether the agreement should stand or be set aside.
If you are considering using a ‘Will kit’ or home-made Separation Agreement, we strongly recommend you speak to a lawyer. By having the proper legal advice, you are far more likely to achieve a Will or agreement that meets the requirements of the law, is tailored to address your specific needs, and one that will stand the test of time.