Separating from your spouse or common law partner can be one of the most emotionally charged periods of your life. You may make hasty decisions that can affect your legal, professional, and financial future.

At Barnett Law, we understand how complex it can be to navigate a separation agreement and deal with mistakes that can cost you your future. This is why our family lawyer will help you understand the common mistakes people make with separation agreements and how to avoid them. Discover more in our guide.

Table of Contents

What Is A Separation Agreement?

A separation agreement is a legally binding written agreement that married spouses and common-law partners can enter into in Canada for legal separation. The document can outline each partner’s responsibilities during the separation period, such as:

Property and liabilities division
Decision-making responsibility for their child
Parental time arrangements with their child
Child support and spousal support
Approaches to divorce or dispute resolution

Separation agreements are designed to help partners navigate their responsibilities and finances during the emotionally challenging period. Some couples resolve their issues after separation and return to their normal life. Others may proceed with a divorce and use the separation agreement as a base for divorce terms and conditions.

Common Mistakes To Avoid During Separation Agreements

Making mistakes when developing a separation agreement is completely normal due to a lack of legal knowledge, mixed emotions, and other reasons. Let’s help you understand the common errors that most couples make during separation agreements to help you avoid them:

Delaying Independent Legal Advice

Seeking independent legal advice (ILA) is not mandatory under the federal Divorce Act, but highly advisable for couples undergoing legal separation or divorce in Canada. Delaying a consultation with a family lawyer can have dire consequences, especially if you don’t understand the document properly.

The purpose of an ILA is to ensure married spouses and common law spouses are aware of the terms they’re agreeing to in the separation agreement. A family lawyer will help you understand the legal consequences of each term in the separation agreement.

Upon fully reviewing the document, if you’re dissatisfied with any of the terms, you may refuse to sign the separation agreement or contest it in court if you’ve already signed it.

Separating Without Key Documents

Many couples separate hastily, with one partner moving out quickly and forgetting to take key documents that may have been in a safe or being kept by the other partner. These documents may include:

Financial records
Wills
Tax returns
Identification card
Passport (yours or your children’s)

Leaving behind important paperwork can stress you if disputes with your partner continue to escalate. Always take essential documents with you when deciding to separate so that you can take the necessary legal steps easily.

Hiding Assets To Protect Them

One of the top priorities spouses have during legal separation is to protect their assets and investments. However, you must understand that there are right and wrong ways to protect your financial future.

Hiding a property, financial record, or investment during a separation agreement is a serious error that most people make. When you fail to disclose a key asset, you expose yourself to the risk of nullification of the separation agreement.

Spouses and common law partners can refuse to sign a document they previously agreed to verbally by claiming a lack of financial disclosure. They can also contest an already signed agreement by proving hidden assets and turning the situation in their favour.

Neglecting Your Child’s Needs

Some of the most thoughtful parents end up using children as leverage during separation or divorce cases. You must avoid this error so that the court can see you have your child’s best interests in mind.

Family law courts prioritize the needs of children in cases where a couple have one or more kids. Your separation agreement must reflect that you’re doing the best to protect your child, care for them, and ensure their healthy mental well-being.

Changing Locks Without Discussion

Separating from your spouse is a legal decision that you must make appropriately and through the proper channels. You may want to protect your shared space, such as the matrimonial home, by locking out your spouse, but that can have serious legal consequences.

Proper communication with the spouse is of great importance when shared assets are involved. Sitting down and discussing whether you both will live in the same house with different portions, or one of you will move out, and if it’s the latter, then who will be moving out is more beneficial.

Clearly communicating your needs and ensuring your spouse agrees to it is always a better approach to developing a separation agreement. The term can also be included in the document to ensure it’s legally binding.

Rushing To Settle Quickly

You may want to minimize emotional trauma by agreeing to whatever your spouse suggests to get out of the marriage. However, rushed settlements can have serious consequences in the long run. Giving up on assets without putting in proper thought can impact your financial and personal life.

Sometimes it may also be too late to realize that the terms of your separation agreement are grossly unfair. While you can contest the document for unfair terms, the process can be lengthy and overwhelming. This is why it is better to avoid settling quickly with your partner over shared assets, decision-making responsibility, and other aspects of legal separation.

How To Avoid Separation Agreement Mistakes In Ontario?

Making mistakes during a separation agreement is completely avoidable by putting thought into your decisions and seeking the help of a family lawyer. A professional can assess your situation, help you come up with a draft of terms you must propose to your spouse for separation, and review the final document.

Consultation from a law firm such as Barnett Law can also help you prepare for legal steps that can come after separation. For example, you may be legally separating from your spouse to fulfill the one-year limit for divorce in Canada under the federal law. A separation agreement lawyer can guide you in such cases and start the groundwork for your divorce early on.

FAQs

Is A Separation Agreement Mandatory For Divorce?

A separation agreement is not mandatory for divorce in Canada, but advisable for couples undergoing legal separation. The documents help you and your spouse separate assets, responsibilities, and shared debts. It also lays the groundwork for the terms of your divorce if your marriage is irreconcilable.

How To Draft A Separation Agreement In Ontario?

You can draft a separation agreement by sitting down with your spouse and discussing different terms with each other. A family lawyer may help you assess what assets you have, whether you should be seeking spousal or child support, and create the final written agreement for you.

How Much Does A Separation Agreement Cost?

A separation agreement in Canada costs about $500 to $10,000 above, depending on the type of agreement. For example, separation agreements without a lawyer range from $500 to $2,000. Meanwhile, you should expect to pay at least $5,000 for a separation agreement in Ontario.

How Does A Family Lawyer Help Avoid Separation Agreement Mistakes?

Professional family lawyers help you organize your assets, liabilities, and debts (shared and individual). They advise you on how to protect your individual assets without hiding them, review the first draft of your separation agreement, and help you negotiate terms that may be unfair to you.

Draft A Thorough Separation Agreement Today With Barnett Law

Separating from your spouse can be a tough decision due to the good memories, children, and other personal reasons. You may feel pressured or overwhelmed, which can lead to errors when navigating a separation agreement.

At Barnett Law, we have a team of family lawyers who can assist you during the separation process and avoid costly mistakes. If you wish to learn more about developing a separation agreement or independent legal advice for separation, contact us to book an appointment. Our team would be happy to help you navigate this emotionally and legally challenging phase of your life.

Author Profile

Barnett Law

Barnett Law is a trusted and knowledgeable lawyer in Scarborough. Her expertise spans real estate law, family law, adoptions and fertility law. A lawyer by profession and a humanitarian by heart, Athena Narsingh Barnett wants to help people become more familiar with the legal system and be well-informed to make important legal decisions.