Welcome to Spring! We’ve been blessed with sunny weather and, with the COVID vaccines now a reality, are finally beginning to see the light at the end of the tunnel.
However the COVID pandemic – now over a year long – has exacted a huge toll on marriages and relationships. For many it has resulted in people deciding to separate, and to seek resolution of their issues via a Separation Agreement.
Some of you have read my November 2020 blog, which was about the fact that parties can negotiate a marriage contract in the middle of the marriage (or cohabitation agreement in a common-law relationship). For those who have done so, hopefully this may have resolved issues for the parties to continue their relationship.
My point in today’s article is that, in the quest of getting it over with by doing a “quick and dirty” Separation Agreement, that will most likely not resolve the issues and may well come back to haunt the spouse later. I recently had a client – Mrs. X – who came to me several months after she had signed a Separation Agreement with another lawyer. Mrs. X deeply regretted the Agreement that she had made and felt that she had settled for far less than she should have. She told me that she had separated in the fall and had signed a Separation Agreement also in the fall. Further questioning revealed that, in the interests of getting her Separation Agreement finalized quickly, she had requested that her lawyer take several shortcuts. These shortcuts included not obtaining a value of the matrimonial home, not requesting a valuation of the spouse’s pension, one of the spouses not providing the required full and detailed financial disclosure, and so on. It was clear that Mrs. X had not provided all of the detailed documents necessary so that her lawyer could do the necessary analysis to calculate Mrs. X’s legal entitlements. It was also clear that Mrs. X had been very worried about legal fees, and hence had limited her previous lawyer’s time/work.
Now, 6 months later, what was Mrs. X to do? I told her that the good news is that, in family matters, a spouse can apply to the Court to set aside a Separation Agreement. However, this is an uphill battle, and the onus will be on Mrs. X to prove the necessary circumstances/elements that the law requires in order to win such an application to the Court.
The difficult part is that – in addition to the fact that in Court there are no guarantees – the work that her new lawyer will have to do will greatly add to her legal fees, as the work will be much more complicated than had Mrs. X allowed her previous lawyer to do the necessary work in the first place.
So, today’s teaching piece is that, if you’ve decided to separate, beware of doing a “quick and dirty” Agreement. You may well succeed in your goal of saving time and legal fees. However, in doing so, you will have most likely limited your lawyer’s time and work to do her/his due diligence necessary to meet the long-term results you want, i.e. a Separation Agreement that is fair to you and stands the test of time.
Until next time, Stay safe.
Anne Freed holds a BA (Honours Sociology), JD (Juris Doctor, Law Degree), Master of Laws Degree (LL.M.) in Alternative Dispute Resolution (ADR), Advanced Training in Mediation, Arbitration and Collaborative Practice, and Certification in Collaborative Practice, as well as 39 years’ experience in the practice of family law.
© Anne E. Freed, March 2021