Selecting the Appropriate Lawyer for Your Separation Agreement

What is a Separation Agreement?

A separation agreement is essentially a private, contractual separation with an estranged spouse. A separation agreement outlines the agreements that the parties have reached with respect to parenting the children, how they are going to divide or share the matrimonial assets, and how they are going to live their day to day life. By reaching an agreement with your spouse, you avoid the time and expense of proceeding through the court system to ultimately have a judge make orders requiring you and your spouse to do certain things – which in many cases can be very difficult to enforce.
A separation agreement addresses all issues relating to the breakdown of the relationship , including: parenting arrangements; decision making; dividing matrimonial property; spousal support; child support; tax issues; and family pets. In addition to these issues, a separation agreement can also cover any number of other concerns that are relevant to you, such as a creative arrangement for where to live, or how to divide non-matrimonial property. Separation agreements can be used in the context of a married couple, as well as a common-law couple.

Why You Should Hire a Lawyer for a Separation Agreement

Although using a lawyer for a separation agreement is not mandatory in Alberta, there are a number of very good reasons to have legal representation.
In the vast majority of cases there are financial implications to the division of property and debts. Other implications may relate to custody, child support, spousal support and tax considerations. Whether you are trying to do the document yourself or get by with only a paralegal, an agreement that has not been drafted by a properly qualified lawyer may fail to address one or more critical issues.
No separation agreement should be completed without a well-informed understanding of how particular provisions can impact the parties both during the relationship that has ended and after the relationship ends. A divorcing couple can have questions that range from how to share the family pet to how to divide a pension or stock options.
A separation agreement is extremely unlikely to contain an accurate description of all the financial facts. Ask yourself how you could fully know all the details of your spouse’s financial situation. Many times financial documents, such as taxes, financial statements and paystubs must be requested before you can even begin to understand the full financial situation.
Even if you have reached an agreement without a lawyer, once it is in writing, a lawyer can still help you avoid mischief by asking relevant questions that you and your spouse may not have thought about. Maybe you need to split the proceeds of the sale of a vehicle but there are underlying loans that were not mentioned because your spouse thought you did not need to know. A lawyer can help you understand how the process of dividing the proceeds of the sale of the car should be handled.
If you still think signing a separation agreement without a lawyer may work out for you, ask yourself some more questions. Do you know what net income you should use if calculating spousal support? Do you understand what you could ask in terms of spousal support and would the judge award you any alimony at all? Do you know how the overall division of property and debt can result in a tax bill exceeding $100,000 payable to the government in a worst case scenario? Do you have an understanding of how this could happen? Does your spouse have a large credit card bill they have not included in the financial disclosure you received?
Having a lawyer from the start means you will be able to avoid common legal traps and formalize your agreement with a legally binding document that meets legal requirements and avoids standard mistakes made when preparing the document on your own.

Characteristics of a Good Separation Agreement Lawyer

In the context of a separation agreement, the family law solicitor is often engaged and authorized to provide advice regarding various issues, to negotiate the separation agreement with the opposing party, and to draft the final layout of the document for parties to sign. It is therefore critical to hire a separation agreement lawyer that has a proven history of having successfully negotiated separation agreements.
Keith, Tsubouchi, Aitken LLP recognizes the importance of strong client/lawyer relationships and prides itself on training its lawyers to be client oriented, direct, approachable, and knowledgeable. We strongly recommend that you meet with one of our lawyers to answer any questions that you may have or to simply review your current circumstances.

Inquiries to Make When Retaining a Lawyer

How long have you been practicing family law?
How many separation agreements have you drafted/negotiated/litigated?
Has your practice always focused on family law?
What is your analysis of my case/position?
What would you suggest as a reasonable resolution but that I might not be considering? what are the best and worst aspects of the current offer on the table?
If litigation is necessary, what is the process and likely timetable?

Phases of Drafting a Separation Agreement

To work collaboratively with a lawyer to prepare your separation agreement, generally the first step is to have an initial meeting with him or her to discuss the high level issues that you and your spouse have and to determine whether the lawyer is a good fit for you. Following the initial meeting you will receive a retainer letter that outlines the lawyer’s retainer, how fees will be billed, and other administrative matters.
Typically the next step would be to gather the necessary documents and provide them to your lawyer. The basic documents generally include your tax returns and Notices of Assessment, a form outlining your family finances, and perhaps any agreements that you may have in place related to your family finances, or your marriage.
After the documents have been provided to him or her, your lawyer would draft a Statement of Assets and Net Family Properties for you to review. From that information the lawyer would prepare the terms of your agreement, and send them to you once the Statement of Assets and Net Family Properties is agreed upon by you . Your lawyer would also likely want to meet with you to discuss his or her initial proposal before sending it on to your spouse’s lawyer.
Once you have agreed with your lawyer on what the terms of the agreement should include, your lawyer will then prepare a draft. The draft will address all of the issues that you and your spouse wish to include in the agreement and which you have discussed with your lawyer.
Your spouse and his or her lawyer will likely provide comments and/or revisions to the draft. Your lawyer will work with you to respond to those comments and revisions from your spouse’s lawyer and submit a final draft to your spouse’s lawyer.
After the final draft is agreed upon by your spouse’s lawyer in most cases a separation agreement is signed only by you and your spouse. Once you and your spouse have signed the final separation agreement your lawyer will provide it to your spouse’s lawyer and request that he or she sign it.

Misinterpretations of Separation Agreements

People often have incorrect assumptions about Separation Agreements and the process of negotiating them. It is important to clarify the following common misconceptions:

I am not required to obtain independent legal advice to get a Separation Agreement that is enforceable. A Separation Agreement can be drafted by two lawyers, and no independent legal advice is required. A Judge will apply a different standard to enforceable Agreements where independent legal advice is obtained. However, even where a lawyer has drafted an Agreement, a Judge may still set it aside if he or she feels that one party has not understood the Agreement terms – even though independent legal advice was not obtained. Thus, while independent legal advice is not required in order for a Separation Agreement to be enforceable, obtaining independent legal advice will make the Agreement more difficult to set aside.
If I pay my spouse a large sum, I cannot change the Agreement later. Either party can submit the case to Court later even after a Judge has approved the Separation Agreement. The Agreement can then be challenged in Court. However, if a Separation Agreement has been reviewed by a Judge, the Agreement will become more difficult to set aside. Again, a Judge will apply the standard used for agreements where independent legal advice was obtained. Thus, a party that has expressly agreed to something later cannot easily challenge an Agreement that has been approved by a Judge.
I cannot simply get a divorce based on a Separation Agreement. While a Separation Agreement can affect what a Judge decides on an application, a Judge will not be required to grant a divorce simply because one spouse wishes to obtain a divorce. A Separation Agreement does not limit the jurisdiction of a Judge to grant a divorce.
I do not need my spouse’s financial information to draft a Separation Agreement. The more both parties know about the other’s assets and their values, the easier it is to draft a complete and comprehensive Separation Agreement. Not having adequate financial information could lead to misunderstandings or parties regretting that they did not get independent legal advice.

Cost and Financial Considerations

When entering into the process of separation agreement preparation, costs will invariably come into play in the selection of your lawyer. If you have consulted with a number of lawyers prior to making your selection, you will have undoubtedly been presented with a wide range of cost estimates.
The cost of your separation agreement is a function of a variety of factors including:
Of course each case is different and costs will be determined on a case by case basis. Please keep in mind that although you may have been charged a retainer in a previous matter, there may be a reason for the increased retainer in a new matter. The costs of preparing an agreement and negotiating its terms can often involve many hours of drafting and reviewing. We recommend that you contact the office to ask for clarification as to the quote you are presented with on your retainer letter.

Conclusion: Selecting the Appropriate Lawyer

If you have determined that you need a separation agreement, you know that you will need a lawyer to draft the agreement for you. It is just as important to choose the right lawyer , as it is to ask these important questions for you both to negotiate an agreement. It is strongly recommended that you seek the help of an experienced Family Law lawyer to ensure your legal rights are protected.