The Importance of a Separation Agreement

Frequently when a person decides their marriage is over they immediately think – I need a divorce. While it may in fact be true that they need a divorce this is not their true short-term need. In most cases a divorce is not even immediately available. A person ending a marriage really needs a separation agreement.

A separation agreement can govern all elements of the end of a relationship between separating spouses including but not limited to:

a.where the children will reside and access for each parent,
b. who will pay support and how much that support will be,
c. how family property will be divided,
d. how family property will be managed or sold, and
e. how one or both parties’ pensions are divided.

Having a separation agreement sometimes is not enough, it is vital that the agreement be well drafted:

1. The agreement must be clear and unambiguous so both parties understand their rights and obligations under it. If the agreement is not implemented as you expected, you have not received the deal you bargained for.

2. The agreement must cover all necessary areas. Most separating couples rarely think of issues such as life insurance but this can be extremely important. If the payor (of support) were to pass away the recipient (of support) would lose their financial support entirely and the savings created when the children are in the care of the other party. Conversely if the recipient (of support) were to pass away the payor (of support) may be relieved of their support obligation but it is more than replaced with the obligation of being a full time parent with no financial or other form of support from the deceased parent. In the end, the result is that not only is the surviving party hurt but children suffer significantly by this lack of planning.

3. The agreement must create finality. To do so it must be able to survive a challenge in court. No one wants to settle a matter only to have to deal with it again at significant expense. Finality allows parties to plan their individual futures. While you can never be certain that an agreement will not be set aside by a court it is important to do as much to ensure that it will not. The more sound an agreement is, the less likely someone will take the risk to challenge it. This is important for two reasons:

a. An agreement will never be set aside if it is never challenged; and
b. If an agreement is never challenged no resources will be used defending it.

The best way to ensure the survival of an agreement is through proper legal advice and a well-drafted agreement.

All in all a separation agreement can do a number of things but its most important function is to enable people to move on with their lives. Ending a relationship is traumatic enough, but the added trauma of not knowing your financial obligations, resources and when you may or may not see your children magnifies the difficulty. Settling these issues allows a person to look forward in their life and begin to build a future. Once an agreement is reached parties know their responsibilities, their entitlements and what matrimonial property they are left with.

At McConnan Bion O’Connor & Peterson we can help you navigate through this process. We can draft separation agreements, negotiate separation agreements or give legal advice on a separation agreement. We make the legalese of these agreements legaleasy.