Marriage is the process by which two people make their relationship public, official and permanent. It is the joining of two people in a bond that putatively lasts until death, but in practice is often cut short by separation or divorce.
If prior to getting married or living with someone, you did not have a Prenuptial Agreement, then it would be wise that when the relationship has broken down and you both go your separate ways, that you draft a Separation Agreement. This blog will explain what a Separation Agreement is, why is it important, what can be included in the Agreement and why you need it.
A Separation Agreement essentially is a contract where you identify the terms that you and your partner want to agree on.
The most important items that would be included in a Separation Agreement would be property and custody of children. If you own a home, then as per the Family Law rules, the home is to be split 50/50. If children are involved in the marriage or cohabitation it is very important to lay out the parenting schedule, who’s going to have primary custody or is it going to be a shared custody between both parents.
Other items to consider would be common assets and spousal support. Some assets have a lot of value and sometimes couples want to make sure that they share the value or one may want to buy the other person out. With regards to spousal support, both spouses and common law partners’ income are looked at in order to determine if there are any other Financial Entitlements.
Prior to drafting a Separation Agreement and starting negotiations, all finances need to be disclosed including bank accounts, loans, debts, lines of credit and notice of assessment for 3 years. It is also important that both partners disclose the same type of documentation so that your lawyer understands what they’re getting into prior to negotiations.
Depending on the facts of the case or circumstances of each client there are other things that need to be discussed and included in the Separation Agreement. What is very important to remember that most people often overlook, is that even though you and your partner separate amicably and you don’t want to get the courts and lawyers involved, it’s always a good idea to have a Separation Agreement which includes everything, so that you are covered for the future. As time goes on, people change, the amicable breakup may change as well, so it is very important that you have an agreement that you are both happy with and you can always go back to reference should a dispute ever arise.
When it comes to drafting a Separation Agreement it may take a while if things are not very straightforward. This depends on many factors including: the years of the relationship, if it has been a long marriage or if it has been a long cohabitation, assets, are children involved, is there some friction between both partners in terms of who has the children, who gets what and how much will be given in child or spousal support.
With this, comes a lot of correspondence between lawyers. When you hire a lawyer to prepare a Separation Agreement you will be advised as to everything you are entitled to. Be prepared to tell your relationship story in full detail so that you will receive the proper advice that you deserve. Keep in mind that your partner is most likely doing the same in return so there will be a lot of back and forth until a common understanding and a common Separation Agreement is reached. During this process you might get a little bit frustrated, but you have to understand that everything you agree to will be put in writing so it’s very important that you agree with all of the clauses before signing the Separation Agreement.
There will be occasions that one partner may choose to go it alone and not have a lawyer involved. It is required by the other partners’ lawyer to advise them that prior to signing the Separation Agreement, the partner that does not have a lawyer must have at least received independent legal advice just so that they know exactly what it is they are signing.
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