The decision to end your marriage is a difficult one. Emotions run high and may get in the way of making the essential financial and family decisions required in order for you and your spouse to get on with your lives. Reaching a written settlement with your spouse about custody and access to your children, support, and property division issues is preferable to letting a judge who does not know you make decisions that will affect your future, including the relationship you will have with your children. A divorce settlement agreement allows you to be in control, but there are a few things you need to know before you sign one.
Purpose of a Divorce Settlement Agreement
If you can prove there has been a breakdown of the marriage, you can file for a divorce regardless of whether or not you and your spouse have resolved financial and child custody issues. An application to the courts in Ontario may request a divorce and the resolution of other family issues, including:
- Child custody and support
- Spousal support
- Property division
- Allocation of debts and other financial obligations
Unless you and your spouse have a written separation or divorce settlement agreement resolving these and other issues related to your marriage, a judge will make those decisions for you after a trial and the submission of evidence from both parties.
A settlement agreement can save time by avoiding hearings on issues related to finances, property and your children. It also allows you to be in control of the decision-making process rather than relinquishing it to a judge.
A Divorce Agreement Has Long-Term Implications
Resist the temptation to agree to something simply to make the fighting and emotional turmoil associated with a contentious divorce come to an end. Divorce agreements and separation agreements are binding and legally enforceable contracts, so it is important to make certain it accurately reflects terms to which you are willing to be held in the future.
If you or your spouse fails to abide by the terms of the agreement, a breach of contract lawsuit can be filed asking a court to order compliance. Agreeing to something or conceding an issue simply to get the divorce over with is dangerous because you could be held to it for many years to come.
Make certain you understand the terms of the agreement before signing it. Courts are reluctant to change the terms of an agreement unless it was the result of fraud, overreaching or some other form of misconduct on the part of one of the parties.
Agreements Must Be Based Upon Full Financial Disclosure
Money and assets are key elements of divorce agreements. Child support, spousal support and division of assets require full disclosure of finances by each spouse.
Do not sign a divorce agreement unless you are certain there has been full and honest financial disclosure of income, assets and debts. Failing to make full disclosure could be the basis for a court refusing to enforce the terms of an agreement, or a court could ignore the terms of an agreement and elect to order a different result. For example, if child support agreed to by the parents is inadequate to meet the needs of a child, a judge could ignore the agreement and order a different amount.
Get Advice from Lawyer
A lawyer experienced in family law matters, including divorce and separation, can ensure that any agreement you sign covers key issues and protects your rights. Even if you have reached an agreement with your spouse, having a lawyer review it to determine if it is in your best interest before signing it could prevent you from making a mistake that could affect you in the future.