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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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  #1  
Old 03-07-2017, 10:33 PM
jack123 jack123 is offline
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Default Separation Agreement - Spouse will sign but refused to have her lawyer review

Both my spouse and myself have a lawyer who has given us legal advice on separating.

Since then we've gone to a Mediator, who has helped us craft a separation agreement that we both agree to and I feel both understand.

But now my spouse doesn't want her lawyer to review the separation agreement. She will sign it, along with witnesses. But she has said she doesn't need or want her lawyer to review it. Mainly to save money as she doesn't want to give her lawyer anymore money and even the review will cost something and she just said she doesn't need it so won't do it.

I'm worried this might put me at a disadvantage, because a year later she could say she didn't understand the agreement because she didn't have a lawyer review it, so wants to set it aside. Most of the legal websites I've read in canada have said that if both parties don't have a lawyer review the separation agreement it could put that agreement at risk.

What can I do? I'm fine with having my lawyer review the agreement. But I'm worried if she signs with no legal review, it might make the agreement less final if later in the future she becomes unhappy and wants to break it.
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Old 03-08-2017, 09:59 AM
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Janus Janus is offline
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I was hoping somebody would respond because I don't know the answer.

Offhand, I would not sign the agreement if the other person didn't get independent legal advice. It would be like signing a contract with a 5-year old child. You might follow your end of the bargain, but the agreement is unenforceable, which is the entire point of having the agreement in the first place.

Adults should be allowed to enter into contracts, but in family law, we are all considered to be incompetent children. Don't sign a contract with an incompetent child.
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Old 03-08-2017, 10:32 AM
Beachnana Beachnana is offline
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My daughter had the same situation. Her ex was happy to sign and have her lawyer do the paperwork. It was all about money of course.

He was part of the writing up of the details himself based on what a judge had said at the CC but had discharged his lawyer previous to the signing.

The judge had agreed on the agreement

Hopefully there is not a situation where this would be set aside. So will be interested to hear from " experts" on the matter.
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Old 03-08-2017, 11:49 AM
rockscan rockscan is offline
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What about adding a clause? You received legal advice from x lawyer and your ex refused independent legal advice and waives any future options to reopen negotiation to change any non-variable clauses.

And also add in any other things they waived like spousal etc?

My partners agreement has a specific section about him waiving the right to spousal and any future negotiation of pension amounts. It goes on about independent lives etc. then the last clauses outline who they received legal advice from and that they agree they have no issues with the agreement or how it was done.
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Old 03-08-2017, 12:15 PM
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arabian arabian is offline
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I think that when judges do toss out agreements made without ILA it is because the judge finds that the agreement goes against the essence of what the two parties agreed upon. Another reason is that the agreement distinctly puts one party at a disadvantage. If the two of you have participated in mediation and the agreement reflects what the two parties have agreed on then there should be no problem when one party does not obtain ILA.

I am not a lawyer though and it would be worth your time to do your own search on CanLii for similar situations to yours. Shocking as it may be to some, people divorce and separate and have agreements filed in court all the time without ILA. More often than not these agreements are upheld in court if later challenged - to put your mind at ease you should read up on those cases which were later successfully challenged.
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Old 03-09-2017, 05:29 AM
North of 40 North of 40 is offline
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Had the identical thing happen.

6 months after the signed mediated agreement, she sought out a lawyer (boyfriend dumped her needed money) Long story short, she "had not received independent legal advice". What was the result....., a crap load of legal bills and essentially the same deal.
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Old 03-09-2017, 10:16 AM
HammerDad HammerDad is offline
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Do you have any of that in writing (ie. emails)? If you do, it would go a long way in arguing against her position that she was disadvantaged by not having legal advice.

Generally, not having ILA is the argument when one party is a position of power over the other and forces an agreement upon them. The disadvantaged party may not understand the issues and/or not be in the right frame of mind. ILA is supposed to allow each party to be on a level playing field.

If, because of cost, the ex is refusing to have their lawyer review and approve a mediator drafted agreement, I think their argument for rescinding it would be weak. It wasn't like they couldn't have the agreement reviewed. They simply chose not to.

I assume the agreement is otherwise fair and balanced, and that custody provisions are in the best interests of the kids (as best as they can be)?
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Old 03-09-2017, 10:53 AM
ifonlyihadknown ifonlyihadknown is offline
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I was self-represented. Though I showed my final agreement to the lawyer I was consulting with (not representing me) I signed on my own. The ex's lawyer was fine with that.

I didn't want to pay a lawyer to officially review the agreement. I knew what was in there, my lawyer knew what was in there but it would have been a waste of time and money to have her official review it and tell me all the bad things there were.
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Old 03-09-2017, 12:04 PM
trinton trinton is offline
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it's very unlikely the order will hold up if she get's legal advice later on and finds out you screwed her over. One lawyer can't act for both of you. It's a conflict of interest.

You could add in a clause that she knows she had a right to independent legal advice and wave that, but that still will come off as you screwing her over. She has had no independent legal advice.

You could get the order, but don't be surprised if she seeks to change it shortly after.
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Old 03-09-2017, 12:18 PM
number1dad number1dad is offline
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Quote:
Originally Posted by Janus View Post
You might follow your end of the bargain, but the agreement is unenforceable, which is the entire point of having the agreement in the first place.
Completely contradicts your post in my thread. So are you saying it is completely okay and enforceable when a father signs an agreement without independent legal advice but not when a mother does? I don't get it.
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