ILA – aka Independent Legal Advice

Independent Legal Advice

  • While it is not required by law that you obtain ILA before signing a contract, failing to do so can have catastrophic consequences.

  • Without ILA, you run the risk of having your Agreement set aside by a court.

  • You can sign your agreement, even if your ILA Lawyer advises you against it.

  • Your lawyer can refuse to witness your signature or might witness it but write you a letter saying why they advised you not to sign the separation agreement.

Whether you’re considering a Marriage Contract (commonly known as a “Pre-Nup”) or are in the process of solidifying a Separation Agreement, you’ve likely come across the term “Independent Legal Advice”, or “ILA”. This is the process of meeting with a qualified family lawyer who will review your Agreement and advise you of your rights and obligations so that you fully understand what you are signing. While it is not required by law that you obtain ILA before signing a contract, failing to do so can have catastrophic consequences.

ILA may be the last thing on your mind when you’re separating. Maybe you’re satisfied with the Agreement that you and your spouse have reached. Maybe you’re tired of fighting. Maybe you simply don’t want to spend the money on a lawyer. How important is obtaining Independent Legal Advice? Consider this cautionary tale:

Director Steven Spielberg married actress Amy Irving in 1985. In a move to protect his considerable net worth, Spielberg and Irving signed a pre-nup.  Four years of marriage and one child later, the two divorced. It was then discovered that Irving had not obtained ILA, and the pre-nup was declared null and void. Skipping that one little step proved to be a BIG mistake, and Spielberg paid the price… to the tune of $100 million.

This is an extreme example of the importance and value of obtaining ILA. Whether your net worth is $100 or $100 million, failing to properly execute your Agreement can result in total financial devastation. You can save a lot of money by drafting your own Agreement, but if you and your spouse do not each individually obtain ILA from a qualified family lawyer, you run the risk of having your Agreement set aside by a court. If this happens,  you may be left to divide up your assets as if an Agreement never existed, which means you might end up giving your spouse half of everything (or more).

Mr. Spielberg clearly didn’t have a good lawyer to make sure his assets were protected. You can learn from his costly mistake. Save time and money in the long run by obtaining ILA from a qualified family lawyer today.

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SAMPLE - CERTIFICATE OF INDEPENDENT LEGAL ADVICE

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What happens when you get Independent Legal Advice (ILA)

A final piece in preparing your separation agreement is to seek a Certificate of Independent Legal Advice from. Once we have this information it will be added to the separation agreement along with any agreed to revisions (if any). At this point the documents are ready to be finalized.  
 
What happens when you get independent legal advice about your separation agreement?
A draft of the separation agreement will be sent to both of your lawyers so they can read it.
When they have, you’ll each meet with your lawyer to discuss the contents of your separation agreement. Your lawyer may request to see the financial documents.
At this meeting, your lawyer is likely to ask you key questions:
  • Are the facts in the agreement true?
  • If so, how do you know they’re true?
  • Do you understand the agreement?
  • Can you explain the agreement in your own words?
Your lawyer will also want to discuss:
  • How the law applies to your situation
  • Any compromises you’ve made and why you’ve made them
  • Whether the agreement is fair when compared to what you might have got had you gone to court
  • Any changes to the separation agreement that would make it fairer
  • Whether any of the language used should be changed to make things clearer
  • Any changes that could be made to protect you should the other person try and get the separation agreement changed at a later date

Conclusion

The meeting will conclude with your lawyer saying whether or not they think you should sign your separation agreement.
You don’t have to take your lawyer’s advice. You can sign your agreement, even if they advise you against it. However, if you choose this course of action, your lawyer may well refuse to witness your signature or might witness it, but write you a letter saying why they advised you not to sign the separation agreement.
 
Any changes suggested by your Lawyer jointly can be addressed in mediation as it will be faster and more cost-effective than having your lawyers start writing correspondence to each other.
 

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About the Author:
Certified Divorce Financial Analyst & Family Mediator at
647.360.3200
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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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