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When separating from your spouse, you can finalize your divorce through the court, through a mediator or lawyers, or through agreement between you and your former spouse. In situations where you settle the matter without the court, some people will complete what is known as a separation agreement.

A separation agreement is a contract that sets out the matters on which you and your former spouse are agreed. A full separation agreement will address all support matters, parenting, and matrimonial property. Partial separation agreements may set out an agreement on only one issue, like parenting.

When do I Need a Separation Agreement?

There is no situation in which you need a separation agreement. If you and your former spouse complete your divorce on your own, you can use the forms from the court to complete the process without needing a separation agreement.

If you and your spouse own a home that you are refinancing in the sole name of one spouse, your mortgage institution may request a separation agreement. If they do so, you can instead provide them with your matrimonial property judgment once it has been filed and completed. Your mortgage institution may have a policy that requires such an agreement. If you cannot negotiate with them, then you and your former spouse will have to find a lawyer to complete the agreement.

Can We Hire Just One Lawyer?

If you want or need a lawyer to draw up a separation agreement for your property, then unfortunately you and your spouse cannot just pay a single lawyer. If you need a separation agreement to deal with property, both you and your spouse need your own lawyer to give you independent legal advice. Matrimonial property statutes require that both parties to any separation agreement dealing with property have independent legal advice from a certified lawyer. If you do not each have independent legal advice on your separation agreement, it could be declared invalid.

We Aren’t Dealing with Property; do We Need a Lawyer for our Separation Agreement?

If you are only reaching an agreement about parenting or support, or you don’t own any property to divide, then you do not really need a separation agreement at all. However, if you would still like to have an agreement drawn up and signed, then you do not need independent legal advice to sign if no property is being transferred or sold.

Keep in mind that support and parenting can always be changed through court application, provided that there has been material change since the drawing of the agreement. Furthermore, even if you have a separation agreement, you will still need to complete and submit the divorce documents in order to receive a divorce through the court. You can easily fill the forms out by filing your separation agreement with the forms and referring to the agreement. 

Post by Tim
February 15, 2024