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Should your Separation Agreement be drafted by a Lawyer?

Kanata CA personal injury, family, and real estate law firm

Q: My husband and I are separating. It is fairly amicable, and we have agreed on how we want to divide our assets and how parenting will work. Can we both see the same lawyer to draft a separation agreement? We would like to keep legal costs to a minimum.

Everyone likes to avoid or minimize legal fees. That is always a reasonable goal. However, a separation agreement may be the most important document you sign in your life. Even if you negotiate the agreement without involving lawyers, or perhaps through a mediator, independent legal advice for each party is strongly recommended in all cases.

Parties who negotiate their agreement privately and amicably may overlook certain key issues – things like future retirements, tax considerations of asset divisions, and division of Canada Pension Plan credits. Thus, at some point down the road, they may find the document is incomplete or ineffective. At that point, the cost and inconvenience of amending the agreement could be a problem, but more significantly the parties may find that they are in disagreement about one of the overlooked issues. Part of obtaining independent legal advice is to ensure that not only are the contents of the Separation Agreement effective, but that the agreement as a whole is comprehensive to the situation of the parties.

From your own point of view, obtaining independent legal advice helps to provide peace of mind, and ensures that you have a thorough understanding of the legal consequences of the Separation Agreement. The agreement is expected to be permanent so the importance of understanding it in full cannot be understated. Furthermore, it is always important that the opposing party have independent legal advice. This makes it much more difficult for them to attack the agreement in the future. In certain circumstances, a court could nullify the agreement if one party did not understand the legal ramifications of what they signed. This is bad for all parties involved, and will in no way limit legal expenses.

Independent Legal Advice allows both parties to understand the agreement in full, and to know that they can rely on the permanence of the agreement. Although there is a cost, it often helps to avoid future misunderstandings and disputes.

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