Separation Agreement Myths & Reality

One of the most searched topics on my website is “separation agreements.” It’s also a topic that comes up a lot when I talk to clients in person.

I’ve come to realize many people have the same misunderstanding about them. Basically here’s what you need to know: they aren’t mandatory, and can get extremely expensive for something that isn’t even required.

Sometimes your bank asks to see one if you want to transfer title of your home to one spouse after a separation. Keep reading to find out our much less expensive, equally as valid way around this.

What is a separation agreement?

A legal separation agreement in Alberta is a written document drafted after a married couple separate from one another. It can be either drafted by the parties themselves or by one of their lawyers.

A typical separation agreement includes clauses pertaining to the particulars of the parties and their children, spousal support, the division of the matrimonial assets, parties’ personal assets and liabilities, custody, parenting, child support, and financial disclosure. It is, in essence, an all-encompassing document that cover the agreements made by both parties.

Here’s what a separation agreements is not:

• A separation agreement is not your proof that you have been separated from your spouse the required one year before filing for divorce in Alberta.

When you file for divorce, all that is required to prove that you have been separated for one year or more is that you include the date of separation on your Divorce Affidavit. This Affidavit is your piece of evidence, that, among other things, you have been separated from your spouse for one year or more.

• A separation agreement does not initiate the Alberta divorce proceedings.

Most lawyers start the divorce process by drafting a separation agreement for the client.

Essentially, the drafted separation agreement is shared with opposing counsel, and after a series of adjustments, a final agreement is signed and endorsed by both lawyers. Of course, this procedure costs both parties money.

This may be typical procedure for lawyers, but it is not actually required to file for divorce. The document that initiates a divorce action in Alberta is the statement of claim for divorce, which is a court form.

• A separation agreement is not mandatory to file for Divorce in Alberta

There may be reasons why you would choose to have a separation agreement prepared and signed. However, don’t just do it so you are able to file for divorce, because you don’t need it for that reason.

An example of when a separation agreement can be beneficial from a divorce filing perspective is if the clerk is reviewing your file and one of the clauses is not accurate or clear, she can refer back to your separation agreement to cross-reference the information.

Having said that, if your forms are filled out properly, this does not apply to you.

• A separation agreement is not legal in Alberta unless it’s signed by two independent lawyers.

This of course, requires paying two lawyers. Not every divorcing couple wants or needs to hire lawyers.

There are separation agreement templates in Alberta and fillable kits that you and your spouse can use to complete one. I’ve seen some of those and they have good content.

However, a separation agreement holds no weight if you don’t each takes an appointment with two independent lawyers to check it over and give you legal advice on its content.

Essentially, in order to have a proper separation agreement in Alberta, you will require that the two lawyers sign your agreement, along with an Independent Legal Advice Certificate (ILA), which is normally attached to the end of the agreement. Again, all of this costs money for an agreement that ultimately, is not required for your divorce.

• A separation agreement is not always the result of a mediated settlement

When parties are struggling to agree and move forward with their divorce, the best course of action is to meet with a mediator who can help them sort through some of their issues.

When the mediation sessions are finalized, the mediator will typically draft a mediation report, also called a Memorandum of Understanding or a Mediated Agreement. This document will only include the topics that have been agreed to and not necessarily everything that is typically covered in a separation agreement.

Things Can Go Wrong with Separation Agreements

Many people like having a separation agreement in place, as it represents a tangible proof of what’s been agreed upon. It is also useful as proof when conducting post-separation transactions with Canada Revenue Agency, your employer, as well as the bank.

However, things go wrong with separation agreements for many reasons.

Sometimes parties do not provide full and complete disclosure. Other times couples get stuck on some of the issues. That’s when a peaceful agreement can turn into a long paper trail that turns into an overwhelming and long-lasting ordeal, before divorce proceedings even begin. Again, this gets expensive.

If your bank, or another agency has told you they require a separation agreement to advance your file, TDS can help. There are other legal documents that can satisfy their requirements that do not require hiring two lawyers. Our team of divorce filing experts can help you draft the right document for your needs.

If you’d like information about how to start divorce proceedings with all the documents you need and none you don’t, call or email me to learn more about the Constructive Divorce process today.