Separation Agreement. The truth of the matter is that you don’t necessarily have to end up in court if your marriage did not work out.
There is only one thing in any divorce proceeding which only the court can give you and that is the divorce itself. However, all other issues which must be addressed before the divorce is granted, such as custody of and access to the children, child and spousal support and equalization of property, can be dealt with by way of separation agreement. If the parties enter into the separation agreement, their divorce proceeds on uncontested basis and although it is granted by the court, no trial (or even the actual court appearance) is necessary, everything is done by paper.
Normally, the cost of preparation and negotiation of the separation agreement is significantly lower than any contested divorce proceeding. And if you add to that the hostility and stress which usually accompanies such contested divorce cases, the benefits of resolving issues by way of separation agreement become even more obvious.
Obviously, it is not in every case that the spouses are able to work out an agreement satisfactory to both of them and certain situations require the court’s intervention, however, it never hurts to try an amicable resolution which saves time, money and preserves your sanity.
It is important to remember that although the separation agreement is a compromise between the parties and usually does not represent the best result one of them would get in court, some provisions are simply unenforceable and should not even be included in the separation agreement. For instance, while your spouse can agree to waive her rights to spousal support, under the law she cannot waive the child support in the separation agreement or otherwise. So if a clause waiving child support somehow makes its way in your separation agreement, you should not feel yourself outrageously lucky and victorious since such clause is unenforceable. Instead you should probably stop using services of the lawyer who represented you in the case.
Separation agreement should set the child support obligations of the child support payor based on his or her income and the Child Support Guidelines. Such agreement should address the issue of custody of the children. It can also provide for orderly access schedule giving certainty and predictability of visitations to the children and parents alike. Alternatively, it can provide for generous and liberal access which essentially means that the parent who does not live with the children can visit them at any time convenient to everyone involved. The separation agreement can contain the waiver or spousal support or set the quantum and duration of spousal support payments. It should also provide for division of property which can be divided in kind (i.e., you get the house and I get the cottage) or in some other way (for example, let’s sell everything and divide the money 50/50).
It is crucial for any separation agreement to be valid that both spouses exchange full financial disclosure. In other words, if one spouse is not fully aware of the true financial situation of the other, such spouse can successfully challenge the validity of the separation agreement and if the court sets aside the agreement, then the matrimonial issues will be determined by application of general family law principles.
Also, each party to the separation agreement should receive independent legal advice prior to signing it. This means that one lawyer cannot represent both sides of the separation agreement. Typically, one of the spouses retains a lawyer who prepares the separation agreement, then it is provided to the second spouse who reviews it with his or her own lawyer and, if satisfied with its contents, signs the agreement.
The task of any lawyer providing independent legal advice is to explain to the client the law, the provisions of the separation agreement and how they alter the otherwise applicable legal rules, nature and consequences of the agreement and to ensure that the client fully understands the agreement and is entering into it voluntarily.
An issue which often accompanies independent legal advice is the language in which such advice is provided. If your spouse does not speak English, receiving independent legal advice in English will obviously have no value to him or her and will detriment your interests since the separation agreement can be set aside on the grounds that your spouse simply did not understand what he or she was signing. Therefore, it is most preferable that the lawyer providing independent legal advice speaks the client’s language and is able to directly communicate with the client rather than rely on interpreters. For example, I often provide independent legal advice to people in Russian and Hebrew.