What you need to know about separation agreements

What you need to know about separation agreements

The end of a marriage can be a difficult and emotional time. It is easy to become overwhelmed when you do not know if the next step you plan to take is the right one. If possible, negotiating and entering into a separation agreement is advisable. It is usually the quickest, most cost-effective way to resolve issues stemming from a marriage or relationship breakdown. Friends and family have the best of intentions but not necessarily the best advice, which is why you should seek help from a family lawyer. If you are considering separating from your spouse, it makes sense to inform yourself about how the process works.

First, you are considered to be separated when at least one of the spouses forms the intention to end the relationship and there is no prospect of reconciliation. In the eyes of the law, you must be living “separate and apart” to be considered separated. That doesn’t necessarily mean you and your spouse must be living in different homes. It is possible to live “separate and apart” in the same home. If parties do not agree as to when they separated a court will consider factors such as whether the couple shares chores, makes meals and eats together, socialize together, shares a bed and/or has sexual relations.

The date of separation is important because it will be used for the valuation of net family property to be divided by a married couple. It is also important in the determination of the issue of spousal support. As well, if you are planning on filing for divorce, you must be separated for at least one year (unless one person is filing for divorce on the grounds of cruelty or adultery). When a couple separates and want to resolve the issues amicably, they usually try to negotiate and enter into a separation agreement.

A separation agreement is a legally binding contract addressing such issue as:

  • division of net family property;
  • custody and access (also known as decision-making and parenting time);
  • spousal support; and
  • child support;

In Ontario, a separation agreement must be in writing, signed by the parties and witnessed. The parties need to enter into the agreement without any pressure or duress. A spouse cannot force the other to sign a separation agreement. Although not required, it is always recommended that the parties obtain independent legal advice prior to entering into a separation agreement. Lawyer will make sure that the appropriate disclosure is exchanged, the appropriate factors are considered and that the agreement accurately reflects both parties’ intentions. Without the assistance of a lawyer, there is a real risk that a separation agreement may not be enforceable.