Separation Agreement, What Is It?

One of the most common reasons that someone reaches out to a family law firm is to have a separation agreement created. Separation agreements can conclude a common law relationship or a marriage. A separation agreement is useful because it is a way to get closure or to bring a family law dispute to a hopeful end. Separation agreements can be challenged years later if they are not properly created.

It is important to pick a family lawyer that is right for you. The first step is to meet a lawyer for a consultation and make sure to avoid free consultations which are often 15-minute sales pitches. Search for lawyers that are not desperate for work and charge a reduced rate for a one-hour consultation. If a lawyer is desperate for work, there may be a good reason why.

If you are in a common law relationship, you should speak with a family lawyer to see if a separation agreement makes sense, or if you should create another agreement instead. You are still able to seek division of assets and spousal support as common law. Anyone can seek child support payments regardless of marriage or common law status.

It is better if the couple can negotiate privately on the terms before reaching out to the lawyer. The lawyer can then draft the agreement. This approach saves a lot of money on legal fees. Many lawyers charge a flat fee for drafting the agreement, but their hourly rate for negotiations. You can expect to pay a lawyer around $250-550 per hour for negotiating. In some cities, senior lawyers even charge up to $1000 per hour!

A separation agreement is a formal contract between the two spouses and it must be professionally drafted. If the agreement is not created properly or if it is deemed unfair to one of the spouses, it may be deemed void by a family judge.

If it is not fair to children it is almost certain that it will not be upheld. It is also important that both parties understand the contract and enter it willingly.

Once one of the spouses receives the separation agreement from the other lawyer, it is important that they get their own family lawyer to go over the agreement with them. This is called independent legal advice and it will be covered in another post. A lawyer’s loyalty can only be to one client, not to both sides.

It is important to note that a divorce agreement is the same thing as a separation agreement.

Another thing that can go wrong with divorce agreements is if one of the spouses does not disclose asset or debts. In the future, one of the spouses could learn of the hidden assets and ask a judge to void the divorce agreement. Both parties must give an honest list of assets, debts and tax returns to their own family attorney.

*You cannot waive financial disclosure. It must be part of the separation agreement.

Read more: File Legal Separation Agreement Without a Lawyer

Some clients contact our law firm and want us to create an agreement that says their spouse does not get anything. They want us to pressure the other spouse into signing it. There are two problems with this.

  • People must enter into agreements willingly
  • If the contract is unfair, it can be voided later

It is far better to at least offer your spouse something to show you were trying to be fair.

Provides A Guideline

A separation agreement is also useful for providing guidelines for how things will move forward with the relationship. The agreement often outlines the division of assets, child custody, parenting times, spousal support and child support.

separation agreement

The hope of having a separation agreement done is that you will avoid more expensive options such as mediation, arbitration and the family law court system. Spending a few thousand today can save you tens or even hundreds of thousands of dollars in the future.

Some people choose to not have a separation agreement done and instead they just file for divorce in their local court. They still must pay the court fee ($400+). This is OK if you don’t have children or assets. If you do, you will be required to have a family lawyer create a separation agreement for you.

If someone receives your letter and/or separation agreement draft and ignores it, you will have to start a court action against them. Often once a court action is started, the negotiation starts.

In conclusion, a separation agreement is arguably the most important part of the divorce process. This is where all the terms of the divorce or separation are agreed to and prevents the problems from becoming expensive and going on for years. Spend the few thousand dollars now to save a lot of time and money in the future.

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