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Separation Agreement

Separation Agreement

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Published by Richard Day
Canadians wanting to get an uncontested divorce may do so by living separate and apart for a year, and by agreeing to a division of assets and other matters such as support payments which meet the standards required in law. Having a separation agreement helps you focus on what counts and can help in divorce court.
Canadians wanting to get an uncontested divorce may do so by living separate and apart for a year, and by agreeing to a division of assets and other matters such as support payments which meet the standards required in law. Having a separation agreement helps you focus on what counts and can help in divorce court.

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Published by: Richard Day on Jul 04, 2009
Copyright:Attribution Non-commercial


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David R. Greig,
Self-Counsel Press
(a division of)
International Self-Counsel Press Ltd.CanadaUSA
Separation can be a time of great upset. Memo-ries of broken promises and hurt feelings createconfusion. Separating couples, who have man-aged to work together for decades, often cannotagree on anything. Arguments about children,money, and property can quickly escalate intocostly court battles which further aggravate theacrimony and upset.Ironically, the decisions that need to be madeat the time of separation require calm considera-tion and objective assessment. These decisions will create significant and lasting financial conse-quences for the parties and their children.Getting past the emotional turmoil of sepa-ration is not what this booklet is about.There areother books, counselors, and psychologists forthat. The focus here, instead, is on assisting cou-ples who choose to move on, in a productive way, with their lives
 after separation
. It’s about how toreduce your reasoned resolve to a written con-tract that will be reliable.When you and your spouse separate, youhave an opportunity to settle all the outstandingissues by agreement and to document that agree-ment in writing. A
 separation agreement
is simplya contract that records the specific details of thatagreement so that the terms are known to youand others now, and in the future. An agreement that sensibly resolves all rele- vant issues can restore calm. It may also —(a)offer significant tax advantages;(b)simplify divorce proceedings;(c)add certainty to financial planning; and(d)assist in estate planning.
Do the courts recognize separationagreements?
Canadian courts and legislatures have tried to en-courage parties to settle their disputes throughne-gotiated contracts. Separation agreements are onetype of contract. Judges have shown a willingnessto promote the validity of such contracts by a judicial reluctance to interfere. If your agreementis fair, properly executed, and sensible, it willprobably stand the test of time and withstand ju-dicial review. There are, however, several excep-tions to this general rule:(a)If you and your spouse agree on issuesrelating to children (i.e., support andcustody) that are
in the best inter-ests of the child, the court can makechanges.(b)If there is a lack of disclosure or delib-erate deception respecting assets, liabil-ities, income, or expenses, the propertydivision and support agreement may bereviewed.(c)If the agreement is plainly unfair (i.e.,one spouse releases all claims to sup-port without compensation) the courtcan upset it.
 Who is a spouse under current law?
This book is intended to apply to marriedcoupleswho are separated or are considering sep-aration. While many of the principles describedherein apply equally to “common law” (unmar-ried) couples, that is not true everywhere inCanada. Across the nation, the rules that apply tocommon-law couples are changing, so for thosepersons, up-to-date legal advice is essential.Recent amendments to Canadian law nowpermit the formalization of marriage betweensame-sex partners. In the event of a breakdown of such relations (where the parties are marriedunder the new law and have recently separated),the use of the terms “husband” and “wife” maybe inappropriate. Those terms can be supplantedby the given names of each spouse, or by simplereference to “Spouse 1” and “Spouse 2.” A moredifficult issue arises as to the retroactive applica-tion of the law respecting support and propertydivision. If your same-sex marriage has come to anend, consultation with counsel may be advisable. A separation agreement form specific tosame-sex partners is included on the
thataccompanies this book.
(f)The agreement must “make sense” andbe understandable to someone otherthan you and your spouse. Even if theparties think that they understand theagreement perfectly, what they intendmay not be obvious years later if a dis-pute subsequently arises. Because a judge may be called upon to interpretthe agreement, the terms and condi-tions must be clear and capable of onlyone meaning. Sometimes, having a friendreview the agreement
it’s executedto ensure that it’s understandable canbe helpful. If you still have concerns,have the document reviewed by a lawyer.If you do not understand a particular clauseof the agreement or are confused about an issue,investigate further. Do not agree to anything youdo not understand. If you remain uncertain orconfused, talk to a lawyer.While you can add terms to your separationagreement at any point in the agreement, the wording should be clear, legible, and sensible. Inorder for the amendments to be valid, they mustbe initialed by both parties. For example, should you wish to add an item to the MatrimonialHome clause, you should type or handwrite theadditional wording and then initial the amend-ment in the margin as shown below:
Signing and witnessing the agreement
Once you have completed the main body of theagreement, check it for accuracy but do not signor date the agreement. Before you sign, make asmany copies of the agreement as you will need.Good quality photocopies are sufficient for thispurpose, or you can print out the copies you havecompleted on your word processor. You will needat least two copies of the agreement, one for yourspouse and one for you. If you sign the agreementbefore you make the copies, the signatures willnot be original signatures and may not be valid.For the signing of the agreement, you will
need a witness who is an adult (i.e., over 18)and is competent (i.e., understands what is beingdone). In front of your witness, date the agreement,
PREPARING YOURSEPARATION AGREEMENT What is in a separation agreement?
Most separation agreements consist of the sameessential points: They start with the date and thefull names of the parties to the agreement.
, which describe the background or partic-ulars of the agreement, follow. Next, the terms of the arrangement (the
) form the mainbody of the agreement. Finally, the documentends with the
(signing of the agreementby both parties), properly witnessed.Examine the sample at the end of this guideand identify each of these components. Schedule Adescribes the assets and liabilities of the partiesand should be added to the back of the agreement.
Completing the agreement
This kit contains a blank perforated copy of thebasic separation agreement. There is also a
that contains the blank forms in electronicformat for you to use on a
. Once you have fa-miliarized yourself with the agreement, use onecopy of the form to prepare a draft or rough copyby filling in all the variables that apply to yourparticular circumstance.When you are satisfied with the agreementand your spouse has agreed to the terms, use asecond copy of the agreement to prepare yourfinal draft, keeping the following in mind:(a)Add any terms that you want included inthe agreement, but ensure that such ad-ditions make good sense and clearly de-scribe what is intended.(b)Names, addresses, and dates must be infull and must be accurate.(c)Delete any clauses that do not apply bydrawing a line through the words or sen-tences that you intend to omit. Aftercopies of the document are made, both you and your spouse should initial thesedeletions.(d)When two alternative words are pre-sented (such as he/she) be sure to crossout the one that does not apply.(e)All disclosure particulars must be fullyand fairly described. Failure to disclosean asset (such as savings in your namealone) may invalidate the agreement.
Both parties will continueto jointly own and use (totheir mutual benefit) thePuerto Vallarta time share.

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