We are often asked by clients at an initial consultation to obtain for them a “legal separation”. Usually this means the parties want to enter into a written separation agreement that resolves all issues arising from the breakdown of their marriage or relationship. Both married and common law couples can obtain a separation agreement which is basically a contract between the spouses that resolves the issues such as parenting arrangements, child support, spousal support, division of assets and debts.
There are various steps that can be taken to obtain a separation agreement. The most common or traditional approach is for each spouse to retain a lawyer to represent them in the negotiation, preparation and execution of a separation agreement. Another approach is for the parties to jointly retain a mediator who will sit down with them and assist them in arriving at an agreement and either the mediator or the parties’ lawyers will draft the separation agreement.
Sometimes a client will tell us at the outset that he or she has fully discussed the matter with their spouse and they have already arrived at an agreement. In that case, our only role may be to draft the agreement and to ensure that the client is fully aware of their rights and obligations before they sign the agreement. In that case we also recommend the other party meet with a lawyer for independent legal advice before the separation agreement is signed by that party.
Whichever approach is used the costs incurred in obtaining a separation agreement is often significantly less than the costs incurred in going to court to resolve the issues. Not only are separation agreements cost effective, they also allow the parties to have complete control over in determining how the issues are resolved. It is often said that once the matter is referred to court the outcome is no longer in the control of the parties. While the courts will always try to be fair to both parties, the decision made by a judge on any of the issues arising from the breakdown of a marriage or relationship may not be the outcome that a party hoped to achieve.