If your marriage breaks down, a written separation agreement can be the best way to settle the issues surrounding your separation. The agreement can deal with what you both agree to do about custody, guardianship and access to the children, child and spousal support, possession of the family home, and division of property – even who gets to keep the dog! An agreement that the two of you negotiate is much cheaper and more satisfying than a court battle, and it’s one that you have control over.

A separation agreement is a legal contract. So it’s very important that you get “independent legal advice” before you sign any agreement – including an agreement negotiated by a mediator. This means you must see your own lawyer who can ensure the agreement is fair in light of your family circumstances. Typically, one spouse’s lawyer prepares the written document, which is then given to the other spouse and their lawyer for review.

If you have children, you can work out the parenting plan that best suits your family. For example, you may decide on sole custody, where the kids live full-time with one parent, with generous access for the non-custodial parent – but joint guardianship, which means that both of you participate in decisions about the kids’ schooling, religious education, medical care, and so on.

You can also work out the financial support for the children. The Child Support Guidelines help determine how much support a parent should pay. The separation agreement should require each of you to exchange copies of your tax returns or other income evidence every year so the level of support can be adjusted, if necessary.

Then there’s the issue of spousal support. If a court were to decide this, it would consider the financial circumstances of each spouse, including the incomes and needs of both of you. So, for example, you might agree that one spouse should pay financial support to the other for a certain length of time, until that spouse is financially self-sufficient.

If you own property – a house, car, cottage, boat – your agreement can deal with how to divide these assets. You might agree that the parent with whom the children live most of the time should stay with them in the family home until the last child turns 18, and the non-custodial parent will help with the mortgage payments. Or one spouse might agree to buy out the other’s interest in the family home. Or you might both decide to sell the family home and split the proceeds.

After you’ve both signed the agreement, your lawyer will file it with the court so it can be enforced in future if you run into difficulty. A properly drafted separation agreement can also assist with getting an uncontested “desk order” divorce.

Of course, in some cases, a separation agreement isn’t possible, and you’ll have to go to court. For an agreement, you must be able to cooperate with each other and negotiate in good faith.

One more thing – a separation agreement is never final. A fair agreement, where you each have your own lawyers, will be hard to change in future. But if circumstances change in ways not contemplated by the two of you, or if it’s in the best interests of the children, a judge can always vary a separation agreement upon one of you going to court.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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