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  • Seperation Agreement

    My question is if both parties agree and do up a seperation agreement does it have to go through a lawyer to be legal? Also, if CS payments are to be made how are they registered etc?

  • #2
    Separation agreements are essentially private contracts between two parties. They do not have to be reviewed by a lawyer to be valid. However, if one party enters into a separation agreement without having had the benefit of legal advice, a court may consider overturning the agreement on those grounds.

    Ideally, both parties should get legal advice before signing an agreement. The agreement should also be notarized, which can be done with the lawyers.

    In terms of CS, lots of people simply provide payments privately and keep their own records (cancelled cheques, etc.) Alternatively, most if not all provinces have agencies that will collect CS on the receiving parent's behalf. In BC, it's these folks:

    British Columbia Family Maintenance Enforcement Program

    You don't have to use these agencies, but either party can enroll if they want. If you don't use an agency, make sure to keep accurate records so disputes can be resolved easily.

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    • #3
      well spoke to my lawyer today and she was livid that I wasn't going to take him to court...she basically said if we decide on our own that I should take my file back and not use her.....everywhere I read it shows it doesn't have to be legalized.....can a mediator do that? We thought since we are discussing/deciding on our futures and our children we would use a mediator.....

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      • #4
        Well, I was only responding to the two-sentence question you asked, so your lawyer knows more about the situation than I do.

        In any case, you can arrive at an agreement any way you want. You can use a mediator, lawyers, or your cousin, or none of the above. A separation agreement is just paper with words on it that two people sign. Anyone that can use a pen can write an agreement. The only suggestion I make is to have a lawyer review the agreement before it is signed.

        There must be some reason why your lawyer is taking that position. Are you already divorced? Is there a child protection issue?

        Also -- I don't know what you mean by "legalized". There's no such term.

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        • #5
          The point being made - both here and by your lawyer - than any agreement you two work out needs to be reviewed by a lawyer. If not, you might very well agree to something unreasonable and/or have the whole thing tossed out down the road by a judge. A lawyer will be able to explain to you the ramifications of the agreement you are looking to sign, suggest clearer language to avoid disputes and generally give you their opinion about the fairness of the terms.

          If you and your ex can work out an agreement outside of court then fantastic - that's a smart move. What isn't smart is just writing and signing something without a professional have a peek.

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          • #6
            Originally posted by tremw View Post
            well spoke to my lawyer today and she was livid that I wasn't going to take him to court...she basically said if we decide on our own [to make an agreement without lawyers] than I should take my file back and not use her.....everywhere I read it shows it doesn't have to be legalized.....can a mediator do that? We thought since we are discussing/deciding on our futures and our children we would use a mediator.....
            Your lawyer is a money hungry ass. What lawyer would be upset about two people working out their own agreement. She should have said for you to work it out and then you pay her to review/advise what you worked out, avoid courts, and get it done - that is what a professional is supposed to do - help you with things you CAN'T do on your own.

            She was mad about not going to court - the only purpose for court is when you CAN'T work it out, even between lawyers. Court costs at least 20 K it seems, that is why she was mad - you are walking away with HER money!! Then she said she doesn't want to help you if you don't use her to do ALL the work - looks like your lawyer is only looking out for herself and her BMW and not you. Go find another lawyer and get the remainder of your retainer back.

            I called one lawyer that was referred to me for people not in dispute and told them that we were not in dispute, we would work out our own agreement, have them write it up (which they said could be as little as $350). The plan is we then go to our own independent lawyers to advise us, not let them stir things up, then sign and be done.

            Angry you were not going to court - ha - lawyers are on their own self serving planet.

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            • #7
              There was a landmark decision by the Supreme Court made in 2004 with regard to marital agreements. That would would include prenups, marital and separation agreements. (before that decision judges did what they liked).
              What they basically said was that a deal is a deal. However it's only a deal if both parties have independent legal advice.

              Supreme Court of Canada - Decisions - Hartshorne v. Hartshorne

              My lawyer told me that the legal community was turned on it's ear by this decision.

              FN

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              • #8
                thanks for the replies.....we do plan on having a lawyer review the agreement and comment on it...but as far as I am concerned me and my lawyer are done! If we can do it with 1 lawyer and pay only 1 lawyer instead of 2 that is what will be done...

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                • #9
                  You need to have INDEPENDENT legal review each (aka 2 lawyers) if you want it to be as binding as possible - it does not have to cost much, all you need is a lawyer to advise you about the agreement you wrote and document it, you don't have to follow the advice.

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