DIY Separation Agreements
There are many reasons why spouses may choose to proceed with a “do-it-yourself” separation or divorce. One of the most cited reasons is the potentially high cost that can come with retaining a lawyer. However, in the case of separation agreements, this is likely short sighted. The internet is full of Form Agreements for the DIY divorcees; but these may ultimately be way more costly down the road. Here are a few reasons why it is best to proceed with caution when considering Form Agreements:
- Form Agreements are one size fits all, but your separation is unique! No two separations are alike, yet the online Form Agreements are standardized fill in the blanks. It is easy for individuals to overlook important parts of their agreement, including certain property, parenting arrangements, and details around support. An experienced family lawyer will have the knowledge to spot important terms that may be missing;
- The Form Agreements aren’t specific to the laws of Alberta. There are hundreds of options for Form Agreements available online for self-represented litigants to choose from. However, the laws governing family property are different across Canada and it is important that your agreement addresses the requirements in Alberta. For example, under the Matrimonial Property Act, each party signing the separation agreement must acknowledge, in writing before a lawyer, and separate from the other spouse that:
- They are aware of the nature and effect of the agreement;
- They are aware of the possible future claims to property they may have under Family Law Legislation, and that they intend to give up those claims to the extent necessary to give effect to the agreement; and
- They are executing the agreement voluntarily without compulsion of the other spouse.
This is a requirement for an enforceable agreement and without it, your agreement on property division will not be valid in the eyes of the law.
- Separating spouses should be aware of their rights and obligations before entering into a separation agreement. Form Agreements don’t provide the necessary context or legal information regarding each parties’ rights/ obligations under the law. Although it may be beneficial for spouses to work together in negotiating a separation agreement, each party must still act in their own self-interest. A family lawyer will know what you are entitled to, or what your obligations are, in Alberta and consider this when negotiating a deal; and
- The language in a Form Agreement is boiler plate and does not accurately reflect the terms agreed upon by the parties. The language and wording of a separation agreement is critical, and terms must be drafted to accurately capture the agreement between spouses. Confusing terms may lead to parties litigating over the agreement.
For the reasons above, and many others, it is important to meet with a family law practitioner when negotiating and drafting a separation agreement. An online Form Agreement may be a good starting point when researching the various terms contained in an agreement. However, a well-drafted, comprehensive agreement is more likely to be reliable and keep parties out of court down the road. Vogel LLP has experienced family law lawyers that can assist you in protecting your interests in negotiating and drafting all forms of domestic agreements.