Jack is ready to officially move out of the home as he wants to get on with his life. Since he expects to have significant parenting time with the children, he rented a home which he now needs to furnish. For that reason, he had a discussion with Jill this morning and gave her a list of things he wants to take with him including furniture, electronics, tools and other household contents. He also proposed to Jill a way of dividing equally between them their debts, car payments, home expenses and other monthly liabilities. Jack was told by his best friend Mark that everything needs to be divided 50-50, so that’s how he suggested that he and Jill divide their debts and expenses. Jill seemed satisfied with the proposal and Jack started drafting a brief separation agreement confirming the parties’ decisions. After all, Mark and his ex-wife did it this way, they had no problems and they saved a lot of money. In addition, Jack has a copy of Mark’s separation agreement and so it should be relatively easy to just copy the relevant provisions.
For many good reasons, resolving the issues between you and your ex as quickly and cheaply as possible should be your ultimate goal during the separation process. However, there are a few caveats you should be aware of when you decide to put a family settlement in writing without the assistance of a qualified family lawyer, or at least some guidance from such a professional. Too often, what appeared to have been a simple issue can turn out to be a very complex and expensive one. When it comes to resolving family law matters, the agreement or the piece of paper signed by both parties may not be a binding contract recognized by the legal system. In fact, it can be challenged on various grounds and the judge hearing your case may later decide that your “agreement” is null and void.
The first thing you must understand is that in family law, for a contract to be valid it must at least be dated and signed by the two parties before a witness. Secondly, it is possible for the person who challenges the validity of the agreement to argue that the contract should not stand because he or she:
- Did not understand the nature of the contract, its content or consequences
- Was forced to sign the contract by some form of duress, pressure or undue influence
- Signed the contract without financial disclosure, or
- Feels that the contract is simply unconscionable (i.e. completely unacceptable in the eyes of the law)
Finally, to make sure that the contract you signed will be enforced by a court if ever challenged by your ex-spouse in the future, you should always obtain independent legal advice (i.e. ask a family lawyer to review your agreement before you sign it). Make sure that your ex-spouse ALSO gets legal advice but from a different lawyer (the same lawyer cannot give you both legal advice). If you don’t, you may very well have to deal with the same issue all over again in the future, and at a much higher cost. When advising you on your separation agreement, your family lawyer will make sure that you fully understand the content of your agreement, that you are not signing the contract out of duress or some other form of pressure, and that the financial disclosure obtained from your former spouse allowed you to make informed decisions.
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