Separation Agreement Template – A General Overview
This article will provide a general informational overview by going through a separation agreement template that may typically used by a family lawyer in Ontario. However, the article will also discuss the dangers and pitfalls when relying on a separation agreement template found online, or one drafted by unrepresented parties. Having to deal with a separation or divorce can be very difficult. Spouses have many questions and many concerns during this process. One of our main objectives at our law firm is to promote settlement and negotiations where appropriate. The reality is that many family law cases in Ontario tend to settle outside of court. This is usually by way of privately negotiated separation agreements.
Before going into further detail, it is very important to be aware that this information is only a guide on what is, and is not, included in a typical separation agreement template. While family law matters are in no way standard or the same across the board, listed below is only a brief summary of what topics would be included in a comprehensive separation agreement template or outline. Family lawyers and parties will usually revise and modify a separation agreement numerous times before committing to a final draft of a separation agreement.
It is highly recommended that you obtain legal advice from a professionally trained family lawyer before engaging in negotiations to better understand your rights and obligations under the law. A Separation Agreement template or guide is not in itself a proper substitute for legal advice.
This section of a Separation Agreement is essentially an introductory section. It provides a basic overview and summary about the parties, cohabitation date, marriage date, separation date, children, employment, income information, the general intent and purpose of the agreement, and etcetera.
The definitions section of a Separation Agreement will usually set out and define particular legislation, important words and phrases at the outset. The definitions section of a Separation Agreement is important in ensuring that parties are in agreement on the applicable legislation that is being applied to their agreement, the meaning of words and phrases in the agreement. It is likely that a Separation Agreement template found online or prepared without a lawyer may not include the appropriate definitions and details related to the legislation being referred to.
Freedom from Each Other
A separation agreement template may have a section that addresses non-harassment and non-trespass. However, this section at times may not be necessary if the parties remain amicable or in regular contact. At the same time, however, this section may be necessary for high conflict situations.
A detailed parenting section is usually standard and highly recommended in all cases where children are involved. Family lawyers usually work with a detailed separation agreement template that includes commonly used clauses and terms addressing children issues. This part of the separation agreement would include the parties’ agreement on matters relating to custody, access, and communication with the children, information sharing, education, access with third parties and other relatives, change of residence issues, mobility issues, travel, name change, religion, dispute resolution, and etc.
The Child Support section in the Separation Agreement template that majority of family lawyers use are very detailed and are almost always revised to take into consideration the unique situation of a particular case.
A separation agreement dealing with child support should be in accordance with the Child Support Guidelines, Divorce Act and Family Law Act. It should include the parties’ agreement on issues such as the child support amount, duration, annual review, future changes and etc. However, despite standard clauses, there are some situations which call for a review of various court decisions for issues such as deviations of child support amounts based in situations of undue hardship, shared custody, split custody, incomes over $150,000, and etcetera.
A Dispute Resolution section is often an overlooked section in a Separation Agreement. Some parties will simply use default terms and sections in a Separation Agreement template, without giving this section the due attention it actually deserves. However, this is very important section because it ensures that parties have a clear understanding on how future disputes or disagreements are to be dealt with.
There are many different options for dispute resolution of future issues and changes, such as mediation, arbitration, mediation-arbitration, or negotiations with or without lawyers. It is prudent to thoroughly understand the implications of each option prior to agreeing to the use of a particular dispute resolution option for the future.
Spousal Support Releases
A spousal support release section is very common in situations where parties are seeking to release themselves from future spousal support obligations. However, simply relying on a “kitchen-table” or online separation agreement template release, drafted without the assistance of a lawyer may result in the release being ineffective and essentially overturned. Some parties mistakenly think a simple sentence stating that both parties release each other from spousal support is sufficient – this is not necessarily true.
A spousal support release, drafted in accordance with a lawyer’s standard separation agreement template, with the necessary modifications to suit the particular facts of a case, is very comprehensive and lengthy. It is not unusual to find that these spousal support releases comprising at least one to two pages of a Separation Agreement. The reason for this is because the spousal support release must be drafted to take into account the parties intentions based on all potential scenarios that may arise.
While not a topic of this article, Independent Legal Advice is highly recommended for both parties when signing a spousal support release. This is also, unfortunately, something that is at times overlooked by unrepresented parties. One of the main purposes of Independent Legal Advice is to ensure that a party clearly understands what they are agreeing to and that they are doing so without any fear, duress or undue influence.
Medical and Dental Benefits, and Life Insurance
This section is important particularly when parties have children and have access to medical and dental benefits. It is also important when support is owing and the support recipient needs to secure the payments by way of a life insurance policy. This is also something that is at times overlooked and needs to be addressed, particularly when support is involved.
Equalization and Property Issues
The equalization and property section of a Separation Agreement usually includes the amount owed to a party, method and timing of a payment, how the payment is to be secured and etcetera. In addition, depending on the nature of a particular property transfer, it is always prudent to include provisions related to indemnities for potential tax liabilities. A Separation Agreement template that does not include comprehensive clauses and scenarios for various types of property transfers will likely not be a wise choice if the objective is to ensure compliance with an agreement and security.
In many cases the parties will be living in a matrimonial home that is either solely or jointly owned by the parties. In such cases, it is very common for a Separation Agreement to outline what is to happen to the matrimonial home. Whether the parties are selling the matrimonial home or whether a party is buying out the other spouse’s interest, it is very important that due regard be given to this section.
For example, if parties jointly own a matrimonial home and a buyout is happening, it is very common to include provisions dealing with notional disposition costs, including real estate commissions and legal fees. This is something that is at times overlooked or forgotten with parties use an online Separation Agreement template and negotiate without lawyers. Such a mistake can potentially end up costing a party tens of thousands of dollars if the matrimonial home has a substantial amount of equity in it.
An equally important section of a Separation Agreement is that which sets out the responsibility of a parties for the different debts. While this may not be as important for parties who have always maintained debts under their separate names, it is very important in situations of existing joint debts or future debts.
It is common to see this section of a Separation Agreement to include terms relating to indemnification in cases where a party has agreed to reimburse or indemnify the other spouse. In addition, terms are also included that include how enforcement of a particular indemnification agreement is to occur. It is likely that a Separation Agreement template used by unrepresentative may be insufficient in providing appropriate protection in such cases where indemnification agreements are used.
If a spouse has entitlement to the other spouse’s pension, it is common to see a separate section devoted entirely to discussing how a pension will be treated, including the division of Canada Pension Plan credits. Where party is entitled to a portion of a Defined Benefit Pension or Defined Contribution Pension, this section should be very carefully drafted to ensure the method of division is clearly laid out to avoid any delay or rejection of the transfer by a pension plan administrator. Usually an online or do-it-yourself Separation Agreement template is lacking the clear and comprehensive clauses required to address pension matters.
Equally important in this section are terms relating to releases of pension benefits, if applicable to a particularly situation. In such cases it is common to include comprehensive information and detail pertaining to a party’s pension, including its value, in the actual Separation Agreement.
In addition to the Spousal Support Release section, it is highly recommended that parties include a general Release section in their Separation Agreement. As mentioned earlier, a “kitchen-table” or online Separation Agreement template is likely not going to suffice in providing the appropriate language and protection. It is highly recommended that parties consult with a family lawyer and have a comprehensive release prepared where the goal is protection of a party’s income and assets.
Such releases typically include protection for claims based not only in statue, but also claims based in common law and equity such as claims based on unjust enrichments. However, due to the nature of particular assets and the requirement of disclosure and property valuations, a general release in itself may not provide the intended protection. That is why it is highly recommended that parties obtain legal advice before entering into any agreements, particularly when an agreement includes terms relating to a release. Relying on a Separation Agreement template found online, without the careful wording found in a family lawyer’s drafted agreement may not provide the appropriate protection.
General and Miscellaneous Terms
This particular section of a Separation Agreement is usually reserved until the end of the Separation Agreement and includes various terms and agreements relating to miscellaneous and general terms. Again, it is unfortunate that many people overlook this agreement and believe it to be just a formality, which is not necessarily the case. A do-it-yourself Separation Agreement template will likely be inadequate in completely addressing the various issues that should be addressed in this section.
This section should very clearly lay out that the parties intention relating to the finality of the Separation Agreement (unless this is just an interim agreement of course). Standard clauses on representations, reconciliation, severability and etcetera are very important terms that should not be excluded.
In addition, this section is very important as it should include acknowledgments and agreements relating to financial disclosure, independent legal advice and the parties’ agreement on the applicable law and interpretation of their Separation Agreement. If such acknowledgments and agreements are not included in sufficient detail there may be a risk that a Separation Agreement may be overturned in the future.
In addition to the actual terms of the Agreement, it is usually common to attach Schedules to Separation Agreements depending on what has been agreed to in the Agreement. An example of some common schedules include Certificates of Independent Legal Advice, Travel Consent Forms, Mediation/Arbitration Agreements, Parenting Plans, Direction and Authorizations, and etcetera.
Independent Legal Advice
Lastly, and if not, most importantly, it cannot be overstated as to how crucial it is that parties obtain Independent Legal Advice prior to engaging in or signing any Separation Agreement. This is particularly true when there are important issues that require to be addressed, including the children, property and support matters. It is likely not prudent to use a do-it-yourself Separation Agreement template and sign off without any legal advice.
Independent Legal Advice is essentially legal advice from a lawyer who is completely independent from your spouse. The requirement that the legal advice be “independent” means that parties cannot jointly retain a family lawyer to provide them both with independent legal advice. To do so would put the lawyer in a conflict situation and would make it very difficult (if not impossible) for a family lawyer to serve both parties interests properly.
The above article was meant to provide a brief overview of what is generally included in a Separation Agreement template. However, a separation agreement template is usually not sufficient in itself when dealing with family law matters. This is particularly true when dealing with rights and obligations that impact the matrimonial home, child custody and access, spousal support, child support, equalization and other matters relating to a family law matter. Many people involved in a family law matter mistakenly assume that family lawyers simply draft an agreement. Our firm assists in the entire separation agreement process to ensure that your legal rights are protected and that you maximize your settlement under the law.
For more information about Separation Agreements and better understand why you should not simply rely on a Separation Agreement template when trying to resolve your matter, or about obtaining a divorce in Ontario, please contact our Toronto divorce lawyer.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.
Divorce and Separation
Family Justice Services
Child Custody and Access
Division or Equalization of Family Property
Treatment of a Matrimonial Home
Enforcement of Support Payments