Write Your Own Separation Agreement

Can you write your own separation agreement? Of course. Nothing prevents you from making an informal contract to separate from your spouse. (We’re not saying it’s easy or that you may not need legal advice.)

Protect Your Legal Rights

A separation agreement simply sets out how you will divide property, care for children and pay spousal support (or not). Separation starts as soon as you agree (or disagree) to live separate and apart. You don’t even have to move out. You can live in the same home, as long as you are separated conjugally.

Losing the Love You Had

When you separate, you give up conjugal rights like love, sex, companionship and emotional  support. You lose what family law calls “consortium” or the fellowship marriage gives you. You can live under the same roof if you can’t afford to move out, but you or your spouse or both of you must intend to end the marriage by no longer having a conjugal relationship.

What to Include in an Informal Separation Agreement

Your separation agreement must be written to be legally valid. Eight chapters to include in your separation agreement:

  1. How you will equalize (share) net family property like joint bank accounts, investments or possessions.
  2. If it’s too early to think about that,  how you will preserve your joint property and possessions until you are ready to divide joint assets.
  3. If you will ask for or pay financial support or alimony, as it was called in past. Be careful not to surrender your legal rights to ask for or get spousal support and child support.
  4. Where your children, adopted, biological or stepchildren, will live and how often.
  5. How you will share decision making responsibility for things like your children’s health, education and religious training.
  6. How and where you will spend parenting time.
  7. Who will stay in matrimonial homes, leased or owned, where you lived as a couple.
  8. If you plan to sell your homes, how you will equalize any increase in value since the home was bought and profits or losses from the sale.

Who Owns What in Separation

Ontario’s Family Law Act doesn’t change your ownership rights. If you have separate bank accounts, investments or property that you didn’t buy jointly, you can keep those when you separate. Matrimonial homes — houses, cottages, boats, travel trailers or other domiciles you shared when you were together — are usually the only exception.

Planning for Your Financial Future

Life insurance policies, RESPs, RRSPs and company or retirement pensions like CPP, OAS (Old Age Security) or GIS (Guaranteed Income Supplement) all help you plan for your and your children’s future. Include these in your agreement. You will want to ensure life insurance premiums continue and, when the time is right, you can apply to split pensions with your ex. 

Sharing Matrimonial Homes

The equity or value in your matrimonial homes is usually split equally, regardless of who owns the homes. Once you separate or divorce though, if the homes go up in value, any increase belongs to the spouse with legal title. You can agree to live in a home together (but apart), buy your share outright, sell your homes and share the profits or losses or lease some homes and share rental income and expenses. The spouse who has custody of the children most of the time usually takes those possessions they need, such as furniture and kitchen essentials, to live independently.

Why You Need a Family Lawyer

You can write an informal separation agreement without a lawyer. Getting legal advice is recommended to ensure you truly understand what it means, now and in the future. For example, what will you do if your support needs change due to illness or unemployment? Agreeing to a larger share of the sale proceeds of a matrimonial home by giving up spousal support may not work out if the home sells for less than you thought or your money runs out sooner than you hoped. An Ontario family lawyer can review your draft and give you an independent legal opinion, separate from coercion or influence from your spouse or their legal advisors. 

Is Your Agreement Valid?

Separation agreements have to meet certain rules to be binding and enforceable by a court. Otherwise, parts of the agreement, or the whole thing, could be set aside by family court. Your ability to argue you didn’t understand your legal rights may be compromised if you chose not to get legal advice before you signed. On the other hand, if your spouse withheld assets he had hidden away in a safety deposit box, you might be owed a larger share of the net family property. 

Some Things Are Unenforceable

You can’t agree, for instance, to give up child support. Children have a right to child support and both of you have legal responsibilities to support your children financially. The spouse with the higher income contributes more, typically until the child is no longer living under parental control and is financially independent. Depending on your family cirumstances, that could be when they turn 18 or, more usually, after they finish their first college or university degree or diploma. An adult who is financially dependent on you because of a physical or mental disability or illness may be entitled to full or partial child support for life.

Legal Advice for Separating Couples

Axess Law’s Ontario family lawyers review and help you finalize a draft separation agreement. You can video conference online with a licensed family lawyer anywhere in Ontario, 7 days a week, day or evening. Dial 1-877-522-9377 or in Greater Toronto 647-479-0118 or use our online booking form to make an video call appointment. Lawyers are available to meet in person at our Ottawa, Toronto, Scarborough, Vaughan, Etobicoke, Mississauga Winston Churchill or Mississauga Heartland law offices.

Click here to learn more about Axess Law’s family law services.

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