Independent Legal Advice

[Tiguan2014]

Been search for the answer to this online but came up empty.
Perhaps somebody here can answer.

In a Separation Agreement, can one party get legal advice and the other doesn't. I am not sure if it would be valid. My husband does not want to get any advice and I do.

many thanks

[arabian]

I would insist upon it. Without it he can years later make a real mess of things. He can make invalid the current agreement because he did not have ILA. I'd offer to pay for it. It is very, very important, in my opinion.

[Serene]

You can insist upon it but I don't think it would be prudent to disallow an individual to sign the agreement if that is what they want. In fact, I'd add the line below and have a person witness the document that is not a party to the matter.

I mean, if you went in front of a judge and said "your honour I won't let my ex sign this because he didn't get legal advice"...

And how do you pay for it? I don't think you can retain a lawyer for your ex. Hell that would be a real disaster - you paying for their legal services yet have no control over how long they are with the lawyer, what they talk about (how do you know they don't talk about last night's game and actually reviewed the SA)? How would you know if they even went? You wouldn't be privy to the lawyer/client privileges which includes any and all information pertaining to the two of them...

. Neither my husband or I had ILA and the wording on our one page agreement states: we have each received ILA or waived our right to same.

[DunnMom]

You can't really "insist" on making the other party pay for legal advice.

I know in my brothers case, him and ex did up a draft separation agreement.

He paid approx. $2,500 to have a lawyer review it, make some changes and draw it all up in legalize. Both my brother and his lawyer implored his ex to bring final agreement to lawyer but she said she already had a 1 hr free consult and wasn't going to pay $$ to have ILA.

His lawyer signed off saying that my brother had legal advice and then on a separate page stated something along the lines of "____ has been advised by client and myself to obtain legal advice and has refused to do so" and his ex signed off on that.

So far so good ... not sure if it will stand up in court of law but their case was pretty straight forward so I'm hoping so.

[mcdreamy]

It is not independent legal advice if you pay for it.
Search the boards for "waiver of ila", I thought a waiver had been posted in the past,

[arabian]

The basic idea of ILA, as far as I know, is to receive advice from a specialist in the field of family law, namely a lawyer, to make sure that you know what you are agreeing to by signing the agreement. Often we hear of people who are absolutely aghast at events that happen years after they have signed these agreements who say "I had no idea when i signed this agreement that I was giving up these rights" and so on.

Many people who have been through the gamut of family court understand that case law (previous cases argued in court) more than often determine the outcome of a legal matter. The average individual who has no legal background (myself for one) does not fully understand the law and how to apply it to the decisions we agree to. We may "think" we know but that is not always the case.

There are many cases that I've read on CanLii where one partner takes the other to court decades later, and succeeds, because they were not fully aware of the documents they signed.

Yes I would definitely offer to pay for a STBX to seek independent legal advice.

[Serene]

I agree - if you are paying then it is not independent legal advice. And again, what if they refuse your offer and are willing to sign? I think this is one of those areas you have to relinquish control. And I'm willing to bet if you refused the other party to sign and took it to court you'd get stuck with costs.

At the end of the day if it's a reasonable deal it will be allowed whether it was challenged in court or not, and with or without ILA.

And heck, many people have shitty agreements and clauses WITH the help of lawyers lol

[arabian]

Then if I am totally financially dependent upon my ex, we decide to divorce, and he gives me money for a lawyer you think that action (of giving me money) nullifies ILA?

I disagree, but then, who knows. I am certainly not an expert.

[MS Mom]

Then if I am totally financially dependent upon my ex, we decide to divorce, and he gives me money for a lawyer you think that action (of giving me money) nullifies ILA?

I disagree, but then, who knows. I am certainly not an expert.

If he pays the lawyer directly then I wouldn't consider it ILA. If I selected my own lawyer and paid with funds transferred to me from the ex, then I'd say it is ILA.

[HammerDad]

if you are paying then it is not independent legal advice.

Huh???

I'm not sure you understand what ILA is.

It is simply having another lawyer from another firm, provide advice to a party.

Example.

A retains a lawyer to prepare a separation agreement for A and B. They come to terms on the agreement, but then B goes to another lawyer (and will likely have to pay that lawyer) for that lawyer to review the agreement, advise of any concerns they may have. And then, once that lawyer has let B know what they think, and B can now either sign or back out (as they could have before as well without ILA). The lawyer B retained for the purposes of independent legal advice, would then give provide a certificate that B indeed received ILA from them.

But it is almost always paid for. Not many lawyers I know would ever spend the time to review an agreement and give advice/opinions on the terms without being paid.

[Berner_Faith]

Huh???

I'm not sure you understand what ILA is.

It is simply having another lawyer from another firm, provide advice to a party.

Example.

A retains a lawyer to prepare a separation agreement for A and B. They come to terms on the agreement, but then B goes to another lawyer (and will likely have to pay that lawyer) for that lawyer to review the agreement, advise of any concerns they may have. And then, once that lawyer has let B know what they think, and B can now either sign or back out (as they could have before as well without ILA). The lawyer B retained for the purposes of independent legal advice, would then give provide a certificate that B indeed received ILA from them.

But it is almost always paid for. Not many lawyers I know would ever spend the time to review an agreement and give advice/opinions on the terms without being paid.

I believe what Serene was getting at was, if the OP pays for the ex's lawyer it isn't considered ILA because technically the lawyer will be working for the one who pays the bill.

I don't know the right answer to this, but in my opinion I wouldn't trust it. What is stopping someone from talking to the lawyer and basically paying them off to tell their ex the agreement is good and to sign off ILA? If the OP was paying the ex SS or something and that was used by the ex to get ILA, I think that may be different than the OP simply paying for ILA.

[HammerDad]

I believe what Serene was getting at was, if the OP pays for the ex's lawyer it isn't considered ILA because technically the lawyer will be working for the one who pays the bill.

I don't know the right answer to this, but in my opinion I wouldn't trust it. What is stopping someone from talking to the lawyer and basically paying them off to tell their ex the agreement is good and to sign off ILA? If the OP was paying the ex SS or something and that was used by the ex to get ILA, I think that may be different than the OP simply paying for ILA.

Ethics and the possibility of punishment by the law society.

IMO, the possibility of sanctions, suspension or being disbarred isn't worth the few hundred dollars one may receive to provide bad advice.