Time in court arguing over the terms of separation often has damaging effects on both spouses and children. A separation agreement can save a significant amount of money and may be the best way of resolving matters arising from the breakdown of your relationship and avoid unnecessary time in court.
A separation agreement is a legal contract which can be negotiated before (sometimes called a prenuptial agreement), during, or after the breakdown of your relationship. It represents the decisions that you and your former spouse make together rather than having a judge decide what is best for you and often for your children. Separation agreements can cover not only property issues, but also items such as spousal support, child support, and day-to-day issues related to raising children. It may also cover issues related to obtaining a divorce, such as who applies and pays for the costs of the divorce, although only a court may grant a divorce.
You may draft your own separation agreement, but the law requires that lawyers represent each party and explain their respective rights, risks and obligations to them. If parties do not obtain independent legal advice about a separation agreement, a judge will not be able to ensure the circumstances under which the agreement was signed were fair and appropriate, and may not enforce the agreement if it is challenged.
When people draft their own separation agreement, they often end up in court to settle disputes over the terms of the agreement. Each of the parties may have understood the wording of the agreement differently and a court would then have to decide the proper legal interpretation. People also often draft their own separation agreement to deal with the circumstances they are in at the time and do not include terms to deal with changes in circumstances and/or terms to deal with situations in which one of them does not follow the agreement, leaving important issues up in the air and potentially requiring an application to court to resolve.
To ensure a separation agreement will be enforceable, both spouses must provide full and truthful financial and property information to one another. There cannot be any undue pressure or unfairness in the process of creating the agreement, and both parties must understand their rights and obligations under the agreement. Independent legal advice also ensures that a separation agreement is fair, in compliance with the law, and to show that one party did not force or pressure the other into signing it.
If you are experiencing a separation or breakdown in your relationship, it is a good idea to consult with an experienced lawyer to determine whether a separation agreement will work well for you.