What can you do if you are separating but don’t want to divorce; or you do not yet have legal grounds to petition for divorce? You may decide to opt for a separation agreement (also known as a post nuptial agreement) formalising financial and other matters between you and your spouse, giving you peace of mind. The experienced divorce and separation lawyers at Rogerson Law Group are available to advise you now on negotiating and preparing an effective separation agreement.
What is a separation agreement?
A separation agreement is a formal written contract under which you and your spouse agree the terms of your separation. It is not a legal requirement, but its terms are legally binding so long as neither party entered into it under duress. The agreement must also be in writing and signed by each party in the presence of a witness, and it can be varied later if the parties so wish.
A separation agreement can help regularize matters between you and can cover a number of issues including:
- Where you will live, and who will remain in the matrimonial home
- Who gets the car; the pets
- Who has access to the bank accounts
- How the property will be divided
- Who will pay family bills, debts, and so on
- The amounts and frequency of spousal and child support payments
- Custody and access of any children of the family
Some spouses are able to freely negotiate the terms of a separation agreement. Others cannot discuss matters amicably, and will benefit from mediation. If you need any help in your negotiations for the purposes of a separation agreement, contact us now for help.
It is important to note that if and when you decide to divorce, the court is not legally bound by the terms set out in the separation agreement. However, in practice, the courts will uphold separation agreements that are fair and based on honest and transparent disclosure by the parties.
What if my spouse has not been honest?
If a separation agreement is based on incomplete disclosure, or dishonesty on the part of one spouse, the agreement will not be valid. Both parties must be completely open and honest, declaring all assets and liabilities.
It is increasingly popular for spouses-to-be to enter into a pre-nuptial agreement (commonly called ‘domestic contracts’ or ‘marriage contracts’), particularly where one or both of them are wealthy before the marriage.
A pre-nuptial agreement is, essentially, a legally binding financial contract stating what will happen to the finances and assets in the event the parties separate. This may include the division of property, spousal support, and matters in relation to the bringing up of any children of the marriage (but it cannot extend to custody and access issues).
So long as the ‘pre-nup’ is in writing, signed by the parties and witnessed, it can be upheld by the courts. However, in some cases it may be set aside by the courts, for instance, if the terms are unconscionable, or there is evidence of duress. If you have any concerns about a pre-nuptial agreement, discuss them with us as soon as possible.
How can we help?
It is best for experienced lawyers to negotiate and draft your separation agreement or pre-nuptial agreement because of the legal issues and technicalities involved.
If, for instance, you draft a separation agreement yourself and the terms are unclear – the result may be something you did not intend. By signing a separation agreement or pre-nup, you will be legally bound to comply with its terms. For this reason, it is highly advisable to have experienced family lawyers to assist you, and to protect your interests and those of your children.
You should each have your own independent lawyer.
The divorce and separation team is led by Andrew Rogerson, the firm’s founder. He is assisted by Joseph Gyverson, Matthew A. Giesinger and James Bennett , who complement our domestic and international family law practice.
Contact Rogerson Law Group at (416) 504-2259 – Our experienced Family Lawyers can offer you sound & strategic advise for domestic (Greater Toronto Area) & international family disputes or litigation involving multi-jurisdictional matter.