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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 12-01-2005, 08:32 PM
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Default Separation agreements and other thrilling topics

Hi all,

To cut a long and terribly tedious story short I'm undergoing a separation with my wife. We've been living apart for almost a year now.

We have a 3 year old child. She earns half my salary and has been living in our marital home for over a year (I've taken care of all bills/mortgage essentially). I have no issues or gripes with this. So far things have been fairly amicable and uncontested between us. We are both in agreement on the larger issues i.e. joint custody and she wants to buy the property from me (again, have no issues with this).

I have to the best of my rather limited knowledge of Canadian family law prepared quite a thorough Separation Agreement very loosely based on one of those beloved and commendable separation kits. Though the templates (in the kit) have been cannibalized beyond recognition.

Wife has had her lawyer go over the agreement and after a few largely minor changes is I believe somewhat content with it.

I am almost tempted to sign and have it over and done with though a part of me wants a family lawyer proof read it and ensure that I'm not omitting anything noteworthy. I have no issues retaining a lawyer for an hour or two to do this.

Question, I trust the separation agreement can be used as the basis of a divorce filing and is a legally binding and enforceable document?!? Hopefully this should not occur but how can it be enforced in future if I believe wife is in breach?!?

Thanks in advance for any opinions.
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Old 12-01-2005, 08:59 PM
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Yes, a signed separation agreement is legally binding and enforceable.

I would retain a lawyer to go over it, for your own protection.

Good news, to hear that there are parents out there that can work things out on their own. Your child will only benefit from it!!!!!!!
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Old 12-01-2005, 10:41 PM
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I agree with Grace's comments 100%.

Kudos to you and your ex for coming to an amicable agreement thus far. Your child will benefit from this highly.
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Old 12-02-2005, 08:47 AM
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Hi ichpen,

I just wanted to add that any signed separation agreement is enforceable, but it's also possible for its validity to be questioned later on. If your wife has retained a lawyer, it sounds like she will probably be obtaining independent legal advice. ILA is a meeting between lawyer and client in which the lawyer ensures that the client fully understands the agreement that he or she is entering into and is under no kind of duress from the other party. A certificate of independent legal advice signed by the lawyer is attached to the agreement once the ILA meeting is complete.

If you believe that your wife would be the only one to ever contest the agreement in the future and she is obtaining ILA, then this is in your favour. Although it is always a good idea for both parties to get ILA, it is still useful if only one party obtains it.

It's certainly something you may want to take into consideration. Please note that there is a difference between consulting with a lawyer to review an agreement and retaining a lawyer to provide you with ILA, so please be clear on this when making an appointment with a lawyer.

You may find more details on ILA at: http://www.ottawadivorce.com/indepen...gal-advice.htm

Lindsay

Last edited by Lindsay; 12-02-2005 at 08:53 AM.
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Old 12-02-2005, 11:40 AM
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Quote:
Originally Posted by Lindsay
Hi ichpen,

I just wanted to add that any signed separation agreement is enforceable, but it's also possible for its validity to be questioned later on. If your wife has retained a lawyer, it sounds like she will probably be obtaining independent legal advice. ILA is a meeting between lawyer and client in which the lawyer ensures that the client fully understands the agreement that he or she is entering into and is under no kind of duress from the other party. A certificate of independent legal advice signed by the lawyer is attached to the agreement once the ILA meeting is complete.

If you believe that your wife would be the only one to ever contest the agreement in the future and she is obtaining ILA, then this is in your favour. Although it is always a good idea for both parties to get ILA, it is still useful if only one party obtains it.

It's certainly something you may want to take into consideration. Please note that there is a difference between consulting with a lawyer to review an agreement and retaining a lawyer to provide you with ILA, so please be clear on this when making an appointment with a lawyer.

You may find more details on ILA at: http://www.ottawadivorce.com/indepen...gal-advice.htm

Lindsay
Thanks Lindsay (and all).

Having read the article on ILA it begins to make more sense. Though I don't expect the wife to contest or breach the agreement it makes sense to protect myself by at least having someone independent review it. So what you are essentially saying is that the party that has not received ILA is essentially at a slight advantage in that a case (or defense) can be made that agreement was not fully understood at the time of signing.

Only problem is that ILA sounds a little costly (on the website) compared to an hour's worth of time with a family lawyer.

Need to check with wife that it is in fact an ILA that she obtained (and has certificate to prove it) as opposed to simply a review.
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Old 12-02-2005, 11:53 AM
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Hi ichpen,

That's right. Without ILA, one could always later claim that an agreement is invalid because they did not understand what they were signing.

True, ILA is more expensive than an hour-long consultation, but costs can vary depending on how much (or if any) negotiation between lawyers is required so that each client is protected and satisfied with the contents of the agreement. The more negotiation involved, the higher the costs. Keep in mind, however, that obtaining ILA now could save you thousands of dollars in legal fees later. It's possible that your wife may never contest the agreement, but it's better to be safe than sorry.

Lindsay
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