Calgary Divorce and Separation Agreements
A separation agreement often deals with all of the legal rights and entitlements that you and your spouse may have to address when you separate. This includes aspects such as how you and your spouse will:
- Co-parent your children following separation;
- Provide for your children after separation; and/or
- Separate out your finances and property in a final and legal way.
If your separation agreement deals with property, it is subject to the Matrimonial Property Act of Alberta. Section 38 of the Matrimonial Property Act (“MPA Alberta”) provides that a separation agreement is enforceable only if you and your spouse each have acknowledged in front of your independent lawyers that:
- you are aware of the nature and effect of the agreement;
- you are aware of the possible future claims to property that you have under the MPA Alberta and you are willing to give up those claims to the extent necessary to give effect to the agreement; and
- you are executing the agreement freely and voluntarily without any compulsion on the part of the other spouse; and
- you acknowledge the above noted in front of your lawyer who is separate and independent from your spouse’s lawyer.
This requirement makes it impossible for you to have a Matrimonial Property Agreement that is enforceable in a court of law unless you have received independent legal advice from a lawyer.
What are the Common Mistakes People Make?
1) When people research “How to do Your Own Divorce” they often assume that the Divorce will deal with and conclude the separation of property between you and your spouse. A Divorce Judgment does not deal with property. If you choose to apply for a Divorce, it is a separate and distinct step that is often taken after a separation agreement is executed. The only way for you and your spouse to have a binding agreement that deals with your property, is for you and your spouse to have independent legal advice that meets the requirements of the MPA Alberta.
2) People often assume they cannot enter into a Separation Agreement unless they have been separated for at least a year. This is not correct. You can enter into a Separation Agreement at any time after you and your spouse agree to separate. One of the grounds for the application for a Divorce Judgment is that you and your spouse have been separate and apart for at least one year, and this requirement is often confused by people as a requirement that applies to a Separation Agreement.
3) People at times choose to negotiate or mediate a separation agreement with the assistance of non-lawyer divorce consultants or mediators and then go to lawyers after the fact for their independent legal advice. The problem with this approach is that when you use non-lawyer consultants, you may end up negotiating an agreement based on legal assumptions that you have made or a lack of legal knowledge, that if you knew, you would have come up with a different agreement. If you then go to a lawyer after the fact and they provide you with information that would cause you to want to re-negotiate your agreement you cannot reclaim the time, energy and money it cost you to come up with the uninformed agreement. Your choice then is to spend more time and energy renegotiating your agreement or living with an agreement to which you feel is unfair, but you decide you have to live with it, because you do not want to spend any more time, energy and money renegotiating your agreement. If you and your spouse decide you want to use a non-lawyer to assist you with your divorce negotiation or mediation, you should first consult with a Calgary family Law lawyer so that you have an idea of what type of information you may need to know as you negotiate your agreement.
Negotiating an Intelligent, Respectful and Long-lasting Separation Agreement
Calgary divorce lawyer Beryl McNeill’s approach is to assist you to negotiate or mediate an intelligent separation agreement, respectfully, based on what you have identified as your most important objectives.
Three of the most common objectives Calgary divorcing couples want in a separation agreement include:
- Protecting children from the emotional impact of divorce and separation
- Negotiating an agreement in an amicable and equitable way (they want a sense of fairness for themselves and their spouse);
- Minimizing the emotional and financial cost of the separation.
Every family is different and has different scenarios that impact their children, finances and property, and therefore every family may require different approaches to reaching an intelligent respectful separation agreement. Call 403-410-3844 to speak with Beryl further about your specific situation or contact us online.