Do-It-Yourself Separation Agreements – A Cautionary Tale
Nowadays, it is common for family lawyers to meet with people who have prepared their own separation agreement and signed it, or plan to sign it. In an age of online templates, kits, and Google, it isn’t uncommon for people to want to sit down with their partner or spouse and do it on their own. Yet what seems like a way to simplify the process, keep lawyers out of it, and avoid high expenses, can, in fact, be a dangerous exercise.
There are risks to preparing your own separation agreement without the assistance of a lawyer. These include the following:
- Source of template or information – while the internet is a great starting point, it can be detrimental to use a guide downloaded online to prepare an agreement. Often, we see draft agreements that include American terms and concepts that don’t apply, or others where the legal language does not correspond with what is trying to be accomplished. Fill-in-the-blank agreements don’t recognize your unique circumstances and needs.
- Full disclosure – one of the key pillars to an iron-clad separation agreement is disclosure. This includes information about the parties’ income and respective finances, as required by the legislation. Proper income needs to be exchanged by parties to determine whether support – spousal or child – is appropriate and if so, paid. All assets and debts need to be disclosed to comply with any asset division required by law or otherwise. Assets aren’t just furniture and household contents but include any of one parties’ financials – pensions, bank accounts, credit card debt, sole and joint investments, et cetera.
- Rights and obligations – without lawyer involvement, there is a strong risk that you won’t actually know what it is you are entitled to under the law or what are considered your obligations. Are you supposed to be a parent receiving child support? If so, how much? Should you be sharing in your partner’s pension, which she/he built up during the relationship or marriage? Are you responsible for that credit card debt? The internet may give you some examples, but these may not apply to you or, if they do, not in the same way.
- Revisiting and restarting – a separation agreement is often a living document, in that it may need to be changed or revisited down the road. If something is missing from the outset or if there’s a disagreement, you may find yourself in a situation where you have to spend more money, time, and resources trying to correct the problem.
- Overturned and starting from scratch – There are many cases that show that a do-it-yourself agreement can be set aside by a court. This could be for many reasons such as improper disclosure or not having legal advice and thus not fully understand what you are signing. You could be told to start from square one and re-open what you already thought you had resolved.
Each family has its unique circumstances. Preparing your own agreement and signing it without learning how the law applies to you leads to the very real risk that your agreement is not fair and reasonable. Having a lawyer review your draft agreement is always a good idea. This way, you can assess the risks, be informed, and decide how you wish to move forward.