Any time a couple separates, how two formerly intertwined lives will be split becomes an issue that must be resolved. Separation agreements are one way of doing this. These agreements can cover everything from child custody, spousal support, property division, to child support, among other issues. These agreements are meant to facilitate separation and arrange how things will work moving forward.
Separation agreements have been recognized by the courts to be agreements, with some degree of formality, that are made during or after a marital separation, concerning issues related to property division, custody, access, spousal support and child support. Separation agreements do not have to be written, and can be enforceable even if they just involved a verbal exchange. However, a written agreement proves that an agreement exists in the first place. If the agreement is every challenged or changed, a written agreement provides a clear starting point. So a properly drafted agreement helps protect your interests now and in the future.
Separation agreements may be challenged for their validity or terms may be varied on application to the court. For example, validity can be challenged on allegations of duress. In other words, one of the parties that signed the agreement may claim that the other party pressured or forced them to sign. It is very important to obtain proper legal advice when considering a separation agreement to protect yourself and the validity of the agreement.
Terms of the agreement may be varied by the courts based whether the terms are fair. This is determined either by the Divorce Act or the Family Law Act depending on the issue in question. There are different considerations about what is “fair” where the term involves child support, child custody, spousal support or property division. For example, in relation to children, what is “fair” depends on the best interests of the child.
Before signing a separation agreement, it is crucial to consult a family lawyer, who will be able to identify whether the agreement is fair to your interests. Failing to do so could result in the court upholding a separation agreement that puts you at a disadvantage. The family law lawyers at Acumen Law can help. For a free consultation, call 250-384-0100 (Victoria) or 604-685-8889 (Vancouver).