Family Law Confidential Episode #3: Top 3 Features of a Great Separation Agreement

Only Under Half of Separations Go to Court

Despite all the apocalyptic family law litigation stories one hears in the media, only slightly under half of all separations involving children lead to court orders governing custody (http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/p4.html ), with 47.5 % going to court, and 52.5% not in court. That court figure moves up to the 51.8% level where the splitting couple is married (likely because they'll need court help anyway to grant a divorce), but it's likely couples without children go to court even less than 47.5% of the time (because property is the sole issue). Thus while I can't lay my hands on comprehensive stats applicable to all couple situations (children-no children-married-not married), it appears fair to conclude that the majority of splits are done without court help. 

This no court order form of family separation that applies to the majority of couples means that separation agreement completion may be the most important legal task of family dissolution. But what makes for a great separation agreement that will stand the test of time? And could you be better off just letting a court sort things out?

Family Law Costs are Mostly Driven by Court Action

It might be an overstatement to call those non-court separations "amicable" - though probably some of them are - but ultimately what will drive your family lawyer costs the most is whether or not you wind up in court. Really what you want is a carefully drafted separation agreement, overseen by an experienced family lawyer, that you can later rely upon as a binding contract between you and your former spouse governing the entire dissolution of your family relationship in every last legally important detail, most notably asset split arrangements, child care arrangements, and child and spousal support issues. 

Keep that split out of court, and your legal fees are guaranteed to be reasonable. Go to court, and legal fees will be a direct function of how nasty things get. Of course it takes two to be reasonable for this arrangement to work. But so long as both parties are weighing costs versus benefits of court action from the get go, rather than just wanton revenge, you'll be on the right track. 

Separation Agreements are Just Contracts, not Magical Scrolls

Three things make for a great separation agreement: (1) detail, (2) clarity, and (3) equity. Before I started law school, I used to think family law settlement agreements magical things, forged out of special secret family law rules known only to the anointed few. But in reality, while separation agreements may be special to the parties they govern, the applicable law isn't any more special than that involved in a car rental contract. 

That's right, family separation agreements are contracts plain and simple, but of a domestic nature. Really not much different than a marriage/pre-nup contract, except at the back end of the coupledom odyssey. 

Why You Really Need a Lawyer to Make a Separation Agreement Enforceable

To all those out there thinking of drafting separations agreements themselves, I agree it is possible, but I've never to date seen a self-rep agreement that will stand up in court. Ever.

So if you are just jotting down a few points on the back of a napkin kind of thing, and don't really expect to try to legally enforce what you are writing, then yes, you can do it yourself. But if the whole reason you're writing things down is because you later want to be able to whip out the agreement in case one of you becomes "forgetful" as to what your understanding really was, then you definitely need a lawyer.

1. Why You Need Detail in Your Separation Agreement

Relationships of anything more than the shortest duration accumulate a lot of baggage. Legally unwrapping your baggage entanglements can take quite a bit of contract language. Like 20 or 30 pages or more of language. 

You've got to reexamine every part of your pre-split life, and figure out how it will continue post-split. Because almost everything beyond the relationship itself will continue. Just in a different form. Although your relationship may be dead, you (and your spouse) certainly aren't dead. Usually. 

Because separation agreements may have enduring legal effect for decades to come, they often wind up requiring a lot more detail than a last will and testament. When you die, it might take a year or two to wrap up your estate. When your relationship dies, you might still be dealing with legal fallout 20 years later if your children were very young at the time of the split. 

So the detail in the separation agreement needs to cover all contingencies. If this, then that. What happens to pensions, to life insurance, to medical and dental coverage? What if the parents develop disagreements about religious upbringing of the children? Lawyers have clauses for all of that. 

2. Why You Need Clarity in Your Separation Agreement

Just because you've got detail, doesn't mean you've got clarity. You might have all sorts of clauses in a separation agreement that you're really proud of, but they might not all mesh together well. Or some of the clauses may be vague in their language. That kind of vagueness that you could drive the proverbial bulldozer through later if one party decides s/he wishes to test the enforceability of the agreement.

At worst, your separation agreement clauses may contradict each other, and the agreement will become unenforceable. This isn't just a drafting tip to self-reps, lawyers can run into this problem as well. If Parliament, with all its resources, can make serious legislative drafting errors that no one picks up on until a law actually comes into force, lawyers can easily mess up trading clauses back and forth in frenzied negotiation. 

Pro tip: carefully read over the final draft of your separation agreement, even if your lawyer has told you it's fine. If something makes no sense to you, force your lawyer to explain it. It might make no sense to him either. Anything can be easily fixed before you sign. After you sign, it can become a huge hassle to set right.

3. Why You Need Equity in Your Separation Agreement

Even if you've got the detail and the clarity you need in your separation agreement, you're still going to need some equity if you want both parties to respect it in the future. It doesn't matter if one or both of you are willing to give away the farm so to speak at the time of its negotiation. I've seen many cases where bitterness only sets in later, and one party then proceeds to court - often successfully and at great expense to both ex-spouses - to overturn the earlier separation agreement. 

In short, if the agreement results in someone getting the shaft, it's going to be no better than an agreement which lacks detail or clarity. You might feel good about it immediately after signing - even if you're the one with the short end of the stick - because "it's over." But momentarily feeling good, and living with the results for decades to come, are different things. 

To be sure, equity does not mean "equal." One of you might be getting more of some things and less of other things. A negotiated dissolution of a relationship will always result in trade offs. And might even lead to somewhat an an imbalance in the resulting separation agreement.

But there is a point beyond which imbalance will slide into legally indefensible. And even if defensible, do you really want to be in court constantly trying to enforce the agreement against the other party, who will probably respond with a motion to change due to differing circumstance, potentially pulling you both into the family law apocalyptic vortex you were both trying to avoid in the first place?

 

Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com.