A separation agreement is a legally binding contract created between two people to finalize their separation. This can be between spouses, common-law and same sex relationships. The contract sets out each party’s rights on issues such as: child custody/access, division of property and debts as well as child/spousal support. The law leaves the decision about having a written separation agreement up to each individual couple.
A cost-effective way of negotiating a separation agreement is with the use of a mediator and then a final agreement drafted by a lawyer. It is far more expensive and time consuming to negotiate through your lawyers. Ideally, each party should have independent legal advice before signing the final agreement.
Overview of what is commonly included in a separation agreement:
- Date of separation
- Issues related to your children:
-Who will they live with?
-Who will have ‘custody’ (major decision making powers)
-If the children live with one parent, what are the other parent’s rights to access?
-How much child support will be paid?
-When will child support end?
- Issues related to spousal support:
-Will one spouse pay support to the other?
-When will support end?
-If there is no support, is it waived forever?
- Issues related to your property:
-Who gets what?
-If you have a house:
-Will you sell it?
-Who is responsible for it until it is sold?
-How will the proceeds be divided?
-What happens if you cannot agree on the terms of sale?
- Issues related to your debts:
-Do you have outstanding debts (credit cards, loans, mortgage)?
-Who will be responsible for which debts?
-What about debts incurred after separation but before divorce?
- Issues related to pensions, RRSPs, RESPs, etc:
-Will you split your pensions and/or RRSPs?
-If you have RESPs, who will be entitled to permitted transfers?
A separation agreement does not legally end your marriage. You still need to get a divorce if you wish to legally end your marriage.
Living separate and apart does not necessarily mean that you require physical separation. You can be living separate and apart but share your home for economic reasons, to co-parent your children or for a variety of other reasons.
It is important to note that judges will not usually change any property division or spousal support terms agreed to in writing, even if it is something they wouldn’t have set themselves. Due to this, it is important that you are fully educated about all your legal rights and are completely comfortable and confident before signing a separation agreement. At Good Family Matters we strongly recommend independent legal advice when finalizing an agreement to ensure it will be recognized by the courts.