How do I write a divorce agreement?
Have your Divorce Agreement Reviewed by a NEUTRAL.
Your Divorce Agreement should be an equal and joint venture.
Any agreement dominated by one spouse over another is destined to cause future conflict.
Divorce Agreement terms need to be created in collaboration with each other, with both parties agreeing to the content.
All potential scenarios need to be covered.
Your agreement will need to state clearly when responsibility for child support ends.
Considerations for Canada, including Ontario
If you’ve decided to go it alone and draft your divorce agreement using a template – form, it’s vital to remember that you’ll be creating a legally binding contract. When completed correctly, it will address dividing property, helping you avoid family court, and future legal problems, This document has the power to shape the nature of the future responsibilities and rights of the two former spouses the agreement relates to.
It follows that this is a pretty important agreement the parties will be creating, one that needs to be developed with great care and attention to detail. To help you achieve this goal, here are my top ten tips to ensure the divorce agreement, aka separation agreement, aka settlement agreement.
Your settlement agreement does not legally end your marriage but does clear the way, to start a divorce, aka apply for a divorce.
TIP 1: BE VERY THOROUGH
Any divorce settlement agreement that’s going to stand the test of time and the close scrutiny it will be subject to needs to cover ALL relevant issues that go beyond things like division of property, custody and access and support payments not leaving any loopholes that could lead to issues or questions from either spouse. It will need to cover all possible repercussions that could result from the separation, like taxation impacts for example. And it’s vital the agreement deals with disputes that might arise by offering up ways that any future conflicts can be resolved.
TIP 2: BE TOTALLY CLEAR
The language you use in your divorce agreement can’t be open to interpretation. It has to be precise and definitive and expressed in a way that can be easily understood by both parties. Don’t fill your settlement agreement form with legal jargon just because you think it lends the extra document gravitas. Always use plain, everyday language so it’s clear to everyone what you’re trying to communicate.
TIP 3: CONFIRM THE ACCURACY OF ALL DETAILS
There’s no room for estimations or wild guesses in a divorce agreement. All the information it contains, particularly those that relate to income and financial statements needs to be truthful and accurate. The same with names and addresses, bank account numbers as well as any dates mentioned. They all need to be precise.
TIP 4: BE VERY EXPLICIT
Some elements of your settlement agreement will require you to go into great detail. We’re talking about things like individual and family assets, physical objects you are planning to divide between you, and other essential matters such as corporate shares or other investments. These all need to be listed in the greatest of detail. Your free divorce agreement template form probably won’t offer up enough space for this, so you are better off attaching a separate sheet with this information to avoid overcrowding the main document.
TIP 5: AVOID THOSE ONE SIZE FITS ALL KITS
There are some divorce agreement kits available that claim to provide legal clauses that can be customized to suit your circumstances. But in reality, there’s no such thing as a good one size fits all divorce agreement kit. If you don’t understand the legal implications of these clauses, many of which are outdated anyway, you could be getting yourselves into a whole world of pain by using them. Leave the legal language to the legal professionals, and leave those one size fits all templates right where you find them.
TIP 6: AVOID FREE SEPARATION AGREEMENT BOILERPLATES TOO
Standardized clauses are unlikely to match your set of circumstances, rendering this type of divorce agreement template forms a dangerous choice. As our earlier tip stated, it’s vital to be specific and detailed. Boilerplates are broad and generic, which goes against everything a settlement agreement should be.
TIP 7: BE FUTURE FOCUSED
Things are going to change in the lives of both spouses, and these need to be taken into account in the terms of your separation agreement. Consider child custody as an example. Your agreement will need to state clearly when responsibility for child support ends, and what happens if one or other spouse remarries. All potential scenarios need to be covered.
TIP 8: COLLABORATE WITH YOUR SPOUSE
It’s an obvious but vital point. Your settlement agreement is going to affect both of your futures. For an agreement to last, the terms need to be created in collaboration with each other, with both parties agreeing to the content. Any agreement dominated by one spouse over another is destined to cause future conflict. Your contract should be an equal and joint venture because if both parties feel they have had equal input into the terms of the agreement, they are more likely to support and honour its terms.
TIP 9: ALWAYS BE REALISTIC
While it’s been mentioned that details are essential to any settlement agreement, there’s no way you will be able to cover absolutely every aspect of your separation in your templated agreement. And any terms or obligations that are too unrealistic or impossible for one or other spouse to uphold in their daily lives will be the first terms to get broken, inevitably leading to disputes. So be sure to make all terms achievable for whoever they relate to.
TIP 10: GET YOUR SEPARATION AGREEMENT REVIEWED BY A PRO
Like anything you ever write, it’s always good to get a neutral’s opinion. And with something as crucial as a settlement agreement, it’s vital. You’re likely to both be in a whirl of negativity and unhappiness when you’re writing it. This can lead to essential points being overlooked or brushed aside as being too difficult to deal with right now. But the whole point of divorce agreements is to deal with these complicated matters. That’s why you should let a divorce financial specialist or mediator or parenting specialist view your agreement and use their experience and knowledge to make sure your settlement agreement is fit for purpose.
As you can see, there are plenty of considerations that need to be thought about when drafting your own divorce agreement using a free template. Following these tips will certainly point you in the right direction and avoid some of the stumbling blocks and conflict you are likely to face. But really, there’s nothing like getting professional help when drafting something as important as a divorce agreement.
As a mediator and CDFA, I can’t stress the importance of collaboration, thoroughness, clarity, and foresight enough when creating a divorce agreement. It is paramount that both parties are fully engaged in the process and find common ground to reach an equitable and satisfactory agreement. This is not a process to be hurried or dominated by one party. It is a joint venture, requiring careful attention to detail, precise language, and an understanding of all potential future scenarios.
This agreement, if well-crafted, can save you from unnecessary conflicts and legal issues. It is a legally binding document that lays out the responsibilities and rights of both parties moving forward. Whether you’re tackling issues like child support, property division, or spousal support, the agreement should be clear, comprehensive, and adaptable to changing circumstances.
While it’s possible to draft a divorce agreement using a template, this approach is not without risks. One-size-fits-all kits or boilerplate agreements are not usually suitable for individual circumstances and can lead to misunderstanding or conflict later on. Therefore, it’s crucial to approach this process with due diligence and care, keeping in mind both parties’ unique needs and circumstances.
Additionally, being realistic is critical in this process. Overambitious or impractical terms in the agreement can lead to non-compliance and disputes. Hence, it’s essential to make sure all terms are feasible and reflect the actual capabilities and circumstances of both parties.
Finally, despite your best efforts, having your draft reviewed by a professional is strongly recommended. This could be a divorce financial specialist, a mediator, or a parenting specialist who can provide an objective perspective and spot potential issues you might have overlooked. They bring experience and expertise to ensure that your agreement is fair, comprehensive, and stands the test of time.
Remember, this agreement is more than just a piece of paper. It is a roadmap that will guide your post-divorce life and help ensure a smoother transition for both parties involved. Therefore, it’s worth taking the time to do it right.
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Ken S, Maynard CDFA
Ken Maynard CDFA, Acc.FM
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.
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Ken Maynard CDFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/May 23, 2023
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