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What goes into a separation agreement?

A Separation Agreement usually includes two main parts - the recitals and the provisions.  A simple way to think about what goes into each of these sections is that one section is for the agreements (the provisions) and the other section is for the context in which the agreements were made (the recitals).  The context includes all of the basic background facts that are relevant to the people entering into the Separation Agreement.

The basic background facts usually include facts about the length of the parties’ relationship, their age, health, employment status and income, whether there are any children (and their names and dates of birth), and the parties' significant assets and liabilities (either listed directly in the recitals or included in attached appendixes).  These basic background facts should appear in the recitals to virtually all separation agreements.

Additional facts that would help a court assess the fairness of the agreement, or whether an agreement is in the best interests of a child or children, also go into the recitals.  Examples include:

  • whether an unequal allocation of assets and/or debts is intended to perform a compensatory role (either instead of or as part of spousal support obligations) or to account for excluded property (or debts);
  • parenting regimes that rely on a history of care, or the particular needs of a child; and
  • time-limited circumstances or other factors that may be having an impact on the income of one or both parties which are not expected to continue.

The provisions of the actual agreement typically contain a number of standard form provisions (for example on the applicable provincial laws, definitions, disclosure, and things that may or may not permit changes to the agreed provisions) as well as the specific agreements on the main topical areas of division of property and debt, child support, spousal support, and parenting arrangements.

Generally, it is important to have a Separation Agreement drafted by a professional, and tailored to your specific circumstances and needs.  "Do it yourself" forms available online produce poor agreements, often with serious risks of which one, or both, parties are unaware.  These do it yourself agreements are often not acceptable to banks, mortgage brokers, or to the court (i.e. for consideration for desk order divorces) and can lead to very expensive and drawn out court battles if one of the parties seeks to challenge it at some point in the future.

At Candid Legal Law Corporation, we have created precedents and systems which enable us to offer the drafting of affordable Separation Agreements.  Where parties are largely in agreement on all terms, they can often be drafted at predictable prices.  Schedule a consultation to meet with a lawyer or a trained professional paralegal to determine how you could benefit from this service.  

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