What's a Separation Agreement? Do we have to have one to get divorced? Does the Judge have to approve it? Is it legally binding?
These are some very common questions when it comes to a Separation Agreement.
The Divorce Act allows a couple to get a divorce after they have been separated for one year. They don't need to do or file a Separation Agreement. Most couples don't have one at all. It is however a good option for couples who want to put the terms of settlement into a binding legal contract between them.
A Separation Agreement can confirm the terms of settlement on custody, child support, spousal support, asset and debt division, the marital home, pensions, life insurance, corporations etc. Because it's drafted by clients and their lawyers, it can be as long or as short as they like, as detailed or general as they want, and can involve any number of topics that are not usually in a court order.
These are some very common questions when it comes to a Separation Agreement.
The Divorce Act allows a couple to get a divorce after they have been separated for one year. They don't need to do or file a Separation Agreement. Most couples don't have one at all. It is however a good option for couples who want to put the terms of settlement into a binding legal contract between them.
A Separation Agreement can confirm the terms of settlement on custody, child support, spousal support, asset and debt division, the marital home, pensions, life insurance, corporations etc. Because it's drafted by clients and their lawyers, it can be as long or as short as they like, as detailed or general as they want, and can involve any number of topics that are not usually in a court order.
There are also some things, such a waiver of spousal support, that can only appear in a Separation Agreement, and cannot be done with a court order.
An Agreement is highly recommended if there will be any on-going obligations for the couple, such as if they plan to continue owning the marital home or a business together.
A Judge does not have to approve a Separation Agreement, although if one spouse comes forward later to challenge the Agreement, a Judge does have the authority to set it aside, in whole or in part. For example, if it is unconscionable, was signed under duress or without the opportunity to get legal advice or there was insufficient financial disclosure it can be overturned by a Judge.
The parts of a Separation Agreement as they relate to children - custody, access, child support - can always be reviewed or changed by a Judge. The court has final say over child matters and can overrule the parents contract.
An Agreement is highly recommended if there will be any on-going obligations for the couple, such as if they plan to continue owning the marital home or a business together.
A Judge does not have to approve a Separation Agreement, although if one spouse comes forward later to challenge the Agreement, a Judge does have the authority to set it aside, in whole or in part. For example, if it is unconscionable, was signed under duress or without the opportunity to get legal advice or there was insufficient financial disclosure it can be overturned by a Judge.
The parts of a Separation Agreement as they relate to children - custody, access, child support - can always be reviewed or changed by a Judge. The court has final say over child matters and can overrule the parents contract.
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