Creating Effective Separation Agreements Without a Lawyer – My Journey
Developing the Separation Agreement as a Couple without lawyer
In your search for a separation agreement solution, you’ve likely read or heard conflicting and confusing information about writing separation agreements. You maybe wondering what makes a separation agreement legal or how to get a Separation Agreement without a lawyer.
The use of terms like financial disclosure, Financial Statements, Parenting Agreements and Independent Legal Advice and Informed Consent, probably add even more confusion, so it’s highly likely you’ll be feeling overwhelmed.
As I prepared to write this, my thoughts went back to a day in early 2007 and the start of my agreement journey. And since so much of my experience is typical of the average Canadian couple, I thought I’d share what I went through to help you better understand how I came to be where I am today.
My recollection of the day in question is as fresh as if it happened yesterday. What was revealed started in motion a series of events that seemed so totally arbitrary to me, I felt entirely powerless to control or manage them.
It was a bitterly, cold morning. I was up at 5:30 am to take my middle child to figure skating practice before school. The snow crunched under my boots as I darted like a rabbit to the ice box in my driveway, known as a 2004 Vibe. I shivered as the cold air filled my lungs. After her morning skate, I dropped my daughter at school for her 8:05 start time.
A Settlement Agreement - In the rear view mirror
To satisfy my craving for anything warm, I swung by for my morning double-double en route to work, about a 50-minute commute into the city. Running late, I hoped to slide in unnoticed to our weekly management meeting.
Memories of the drive in still run like a videotape on replay in my head. I recall looking into the rearview mirror and what I saw was a complete shock to me, a revelation that would ultimately change my own and my children’s lives forever. Tears were streaming down my face. Why on earth was this? I was totally unaware of why I was doing this.
How could it be? What is this, I thought. I am healthy and happy. As a family, we were blessed with three fabulous, healthy, intelligent children active in the community. We had some modest investments, a pension and a rental property. We enjoyed a fulfilling yet modest lifestyle.
Upon reflection, however, I recognized that there was something in my subconscious struggling to come to the surface.
A few months after this unexpected display of waterworks, my wife of 15 years, an accomplished medical professional and a great mother to our young children, announced her desire to separate.
Like most separating couples, we started off our divorce process deeply hurt, sometimes angry and at other times immensely disappointed. Even with all the emotions, I was still hopeful that we could work out a fair settlement.
More about my 2007 separation journey and how things turned out for my family. Thank You for staying with me as I share my thoughts on Separation Agreements.
The Importance of Shared Ownership in a Separation Agreement
Like you’re doing now, I was searching for information on filing for separation in Ontario, or some form of legal separation papers, maybe even an example separation agreement.
I considered several options, including a free separation agreement template I found online. Not sure where to begin in completing the templated document, I moved on to talking to a few family law lawyers hoping to learn what is a legal separation in Ontario and just what are the “separation laws””. I was scared off by that experience. I could not get my head around the adversarial process. Also, then there was the expense. A grudge spend for sure, like buying life insurance and tires.
Just listening to how these family lawyers referred to my ex-spouse gave me the chills. Give me a break! We have children together and many happy years of great memories – not to mention many years ahead as co-parents. I couldn’t get behind that. I was still left with “where to get separation papers”.
The thought of what happens if my spouse refuses to sign the separation agreement never crossed my mind.
Separation Agreement - Fatal Miscalculations
My naivety concerning all things that make a separation agreement led me to settle on what seemed like near perfection. My good friend’s wife, Catharine, was a legal secretary at a big downtown Toronto law firm. She agreed to bring home the firm’s precedent separation agreement, a tried and tested template we could use.
My ignorance was bliss, but it was a relief to have a solution to the separation agreement dilemma finally.
My Second Strategic Miscalculation
So Catherine and I got busy. I remember thinking this was a no-brainer. I have an experienced legal secretary working from the best legal separation agreement template on the planet. Also, I figured that with my many years’ experience developing and negotiating business contracts, I’d be ok – after all, a separation agreement is a business contract between two former spouses.
Catherine and I worked through a weekend, taking breaks for some wine and a BBQ. By Sunday afternoon, we had pulled together a separation agreement masterpiece, a thing of beauty, or at least, so I thought.
My Third Strategic Miscalculation
On Monday morning, I took the separation agreement to a family therapist for her to review and provide input. She was a well-known and highly respected mental health professional, often relied on by family law lawyers for advice and guidance; a trusted advisor supporting separating families who needed some assistance to work out their parenting issues.
I needed to be certain everything was covered regarding the future wellbeing of our children. Wow! Her feedback was invaluable. We spent three hours revising the legal language to be more inclusive and respectful. She provided some further provisions as to how we could resolve any future parenting disputes. Great value for the time and money invested.
My Fourth Strategic Miscalculation
Feeling rather clever, relieved and optimistic for the future, later that day I dropped my self-crafted, best ever Canadian separation agreement into our family friend, a fellow hockey parent and well-respected provider of legal services for the once-over. After a few days, I stopped back in to see Kevin about my “legal problems”. I ran into him in the parking lot outside his office. He had his game face on. It seemed one of his clients was being stalked by their ex-spouse, and he was ensuring his client’s safe passage to their car.
Kevin took a few minutes with me in his office. He said the agreement was as neutral and fair as it could ever be and that I should go ahead and sign it. He handed me his prepared invoice for $1,800 and off I went.
The Downfall of the Best-Laid Plans
I explained to my wife how this was the most excellent separation agreement in Canadian history. I told her how some of the brightest minds had contributed to making this the greatest document humanity had seen since the Magna Carta or the Family Law Act!
She decided to have some more of the brightest minds take a look at the separation agreement, so she retained a lawyer across the hall from Kevin. This lawyer proceeded to dismantle OUR agreement and with his interference went any hope of having our separation agreement signed and an amicable divorce.
After a few months of back and forth correspondence, we found ourselves heading for the family court.
Sadly, too many self-crafted separation agreements meet the same fate, and too many families end up in family court. Please make no mistake about it.
You are likely thinking that subtitling the above paragraphs as “Strategic Miscalculations” seems inappropriate. All these steps seem reasonable, careful and measured steps to take, right?
Read on, and I will explain how each of these steps could have been managed better for the best possible outcome.
Looking back, I can’t help thinking, ‘how on earth did we go from having a self-prepared separation agreement that settled all our issues ready to be signed, to nearly three years of soul-sucking hell-dealing with lawyers and about a dozen family court appearances, not to mention a mountain of money wasted?’
So what was wrong with OUR separation agreement?
Was OUR separation agreement technically deficient?
NO, it was vetted by a lawyer and a Family Specialist.
Was OUR separation agreement unfair or one-sided?
NO, Kevin and the Family Specialist assured me it was fair and child-focused.
Was OUR separation agreement legally enforceable?
YES, as we both would be obtaining a Certificate of Independent Legal Advice.
Was OUR separation agreement durable and long lasting?
YES, as it included a Dispute Resolution Provision and a material Change of Circumstances Provision.
The answer was this: it was never OUR separation agreement; it was MY separation agreement.
It lacked informed consent, and with informed consent comes ownership.
If I had developed the document together with my wife, and negotiated each clause and provision, it would have worked. If we had both sat with the Family Specialist or some neutral professional and discussed the contents of the separation agreement, we both would have come away with a sense of ownership. It would have been OUR Separation Agreement.
No matter how you go about creating your separation agreement, be sure you make a separation agreement that’s by both of you.
Legal Enforceability of a Separation Agreement?
The Longevity of a Separation Agreement
I want you to be clear about the 3 Pillars to create a Legal Separation Agreement, they are vital, so stay with me as I explain each one:
The 1st Pillar: Full financial disclosure
Full financial disclosure is fundamental to informed consent. When the financial disclosure is in place, you will have established a vital pillar of your separation agreement. Full financial disclosure is a precondition to the all-important financial settlement decisions you make. Complete financial disclosure is the bedrock upon which your financial statements are built and will support the informed decisions that form your separation agreement. Only with full and accurate financial disclosure can there be informed consent by each of you.
The Need for Informed Consent in a Separation Agreement
Creating a legally sound, durable and properly executed separation agreement is a key step on the path to achieving an amicable divorce. The separation agreement represents the enduring understanding between spouses regarding all issues.
For an agreement to be legally durable, it’s vital that all decisions are informed decisions formulated from a complete set of facts.
Informed consent can be achieved through mediation, because it’s a process that gives both parties a voice in formulating options that address their interests and concerns. The objective is always to avoid going to court while negotiating your parenting plan, division of assets, support and other settlement issues. Informed consent helps to achieve this.
Independent Legal Advice
You may read or hear that the ‘law’ says you must obtain independent legal advice before executing your separation agreement. This requirement is often misunderstood. It is not as if you will be arrested for signing a separation agreement without independent legal advice. The problem is that we live in an age where people are often not held accountable for their actions.
Ontario family court judges often set aside (nullify) separation agreements when a spouse claims they did not fully understand the implications of what they were signing. This is why independent legal advice is so important to obtain.
In the future, should your ex-spouse could make a request to the courts that a particular section of the agreement, or indeed the entire separation agreement be overturned, a Certificate of Independent Legal Advice (ILA) is your assurance that your separation agreement will be upheld.
An ILA can only be obtained from a lawyer – not a notary, paralegal or commissioner of oath. Divorce the Smartway maintains an extensive referral roster of lawyers prepared to provide you with an ILA. Remember, it is in your mutual best interests to receive independent legal advice.
When you each receive your ILA, a separation agreement is presumed to be binding for both of you.
Rethinking “Lawyering Up”
10 Reasons to Seek Mediation and Financial Guidance First in Divorce
In the throes of a divorce or separation, it’s tempting to seek legal advice immediately – after all, isn’t that what we’re taught to do? However, while legal guidance is crucial, it isn’t necessarily the best first step. Separation and divorce proceedings are about 90% about finances and children rather than purely legal matters. Today, let’s debunk this misconception and explore why it might be better to collaborate with a mediator and CDFA before reaching out to a lawyer.
Timing is Everything
Like in life, timing is everything when it comes to hiring a divorce lawyer. Knowing when to seek legal counsel during a divorce or separation is crucial to achieving the best possible outcome. Here are some key considerations to determine the right time to hire a divorce lawyer:
Control the Process: Working with a mediator and CDFA, you and your spouse maintain control over the process, making decisions collaboratively instead of dictating them by attorneys or the court.
Financial Clarity: A CDFA brings financial expertise to your case, helping you understand financial decisions’ short- and long-term implications.
Comprehensive Disclosure: These professionals guide you in gathering necessary disclosure documents, ensuring no financial stones are left unturned before consulting a lawyer.
Focused Negotiations: Mediators help parties stay focused on their real intentions and the main issues, preventing distractions from the path of resolution.
Cost-Effective: Mediation and financial analysis can often be more cost-effective than immediately “lawyering up” while offering comprehensive guidance.
Reduced Animosity: Opting for mediation first may reduce the antagonism between parties. The traditional “lawyering up” approach can create an adversarial atmosphere that fuels hostility.
Holistic Approach: Mediators and CDFAs consider monetary and non-monetary aspects, such as children’s welfare, providing a more holistic view of your situation.
Informed Legal Decisions: A solid understanding of your finances and intentions empowers you to make more informed decisions when seeking legal advice.
Protection of Rights: The modern family law system ensures your rights are protected – consulting a mediator or CDFA first doesn’t negate this protection.
Better for Children: Focusing on finances and children first helps create a more stable environment during this transition, which is often better for children.
Remember, the goal is to make your divorce or separation as smooth as possible for all involved. Therefore, starting with a mediator and CDFA might not be the traditional route. Still, it could be right for you, providing clarity, control, and a comprehensive view of your situation before you step into a lawyer’s office. As always, every situation is unique, so consider your options carefully and seek the best approach for your family.
Navigating Separation with Expert Knowledge and Guidance
Navigating through a separation or divorce requires not only understanding and compassion but also expert knowledge and guidance. As both a Mediator and a Certified Divorce Financial Analyst (CDFA), I am uniquely positioned to provide the support you need during this challenging time. My dual qualifications enable me to address the financial, emotional, and legal aspects of your situation, helping you to reach a fair and equitable settlement.
My Soft Landing Settlement Method focuses on creating amicable resolutions that minimize conflict and promote a smoother transition into post-separation life. This approach aims to ensure that both parties feel heard, respected, and satisfied with the outcome, facilitating the healing and moving forward process.
I invite you to take the first step towards a more secure and peaceful future by scheduling a Get Acquainted Call with me today. During this call, we can discuss your specific circumstances and explore how my services can support you during this critical time.
Ready to take control of your future? Click the button below to schedule your Get Acquainted Call now.
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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
Ken Maynard CDFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/June 2, 2022
Ken Maynard CDFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/June 1, 2023
Ken Maynard CDFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/March 17, 2022